Conversion. (A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder. (B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date: (1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock; (2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6); (3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market; (4) the Company has failed to timely satisfy its conversion obligations hereunder; or (5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding. (C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 8 contracts
Sources: Debenture Agreement (Phoenix International Industries Inc /Fl/), Debenture Agreement (Phoenix International Industries Inc /Fl/), Debenture Agreement (Phoenix International Industries Inc /Fl/)
Conversion. (Aa) This Debenture Beginning with the earlier of (i) April 10, 2021 and (ii) immediately prior to a liquidation of the Company, each Holder shall be convertible into have the right to convert its shares of Common Stock at the option of the HolderSeries A Preferred Stock, in whole or in part part, at any time and from time to timetime upon the request of such Holder, after the Original Issue Date (subject into that number of whole shares of Common Stock equal to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Series A Preferred Stock to be converted multiplied by the Conversion Rate at such time; provided, however, that in no event shall the Company be obligated to honor such conversion request unless such conversion will involve an aggregate number of shares of Series A Preferred Stock with an underlying value of Common Stock equal to or greater than $20 million, taking into account and including any concurrent conversion requests by any Affiliates of such Holder, based on the Closing Sale Price on the Trading Day immediately preceding the Optional Conversion Notice Date (or a lesser underlying value if such conversion (i) will result in the conversion of all of the shares of Series A Preferred Stock held by such Holder or (ii) has been approved by the Board of Directors); provided, further, that each Holder and such Holder’s Affiliates shall together be entitled to a single conversion right per fiscal quarter. Notwithstanding anything to the contrary in this Section 6(a), if any lender, other creditor or counterparty under any Permitted Loan transaction (including any agent or trustee on their behalf) or any Affiliate of the foregoing exercises any rights or remedies under such Permitted Loan on foreclosure or other exercise of remedies or rights in respect of any pledged shares of Series A Preferred Stock, then such pledged shares of Series A Preferred Stock may be immediately converted by such lender, creditor or counterparty into shares of Common Stock. To convert shares of Series A Preferred Stock into shares of Common Stock pursuant to this Section 6(a), such Holder shall give written notice (the “Optional Conversion Notice” and the date of such notice, the “Optional Conversion Notice Date”) to the Secretary of the Company stating that such Holder elects to so convert shares of Series A Preferred Stock and shall state therein: (A) the number of shares of Series A Preferred Stock to be converted and (B) the name or names in which such Holder wishes the shares of Common Stock to be issued. If a Holder validly delivers an Optional Conversion Notice in accordance with this Section 6(a), the Company shall direct the Transfer Agent to issue the shares of Common Stock no later than two (2) Business Days thereafter (the date of issuance of such shares, the “Optional Conversion Date”).
(b) At any time after April 10, 2021, if the Holders have not elected to convert all of their shares of Series A Preferred Stock pursuant to Section 6(a), the Company shall have the right to cause the outstanding shares of Series A Preferred Stock to be converted, in whole and not in part into that number of whole shares of Common Stock equal to the number of shares of Series A Preferred Stock to be converted multiplied by the Conversion Rate at such time; provided, however, that in order for the Company to exercise such right, (i) the shares of Common Stock must be listed or admitted for trading on a National Securities Exchange, (ii) the Closing Sale Price of the Common Stock must exceed $27.99 for the twenty (20) consecutive Trading Days immediately preceding the Forced Conversion Notice Date, (iii) the average daily trading volume of the shares of Common Stock on the principal National Securities Exchange on which the shares of Common Stock are then listed or admitted to trading must exceed 1,000,000 shares of Common Stock (as such amount may be adjusted to reflect any Common Stock split, combination or similar event) for the twenty (20) consecutive Trading Days immediately preceding the Forced Conversion Notice Date, (iv) the Company must have an effective registration statement on file with the SEC covering resales of the underlying shares of Common Stock to be received by the applicable Holder upon any such conversion and (v) all prior accumulated and unpaid dividends (including, for the avoidance of doubt, Accrued Dividends) have been paid in cash in full. To convert shares of Series A Preferred Stock into shares of Common Stock pursuant to this Section 6(b), the Company shall give written notice (the “Forced Conversion Notice” and the date of such notice, the “Forced Conversion Notice Date”) to each Holder stating that the Company elects to force conversion of such shares of Series A Preferred Stock pursuant to this Section 6(b) and shall state therein (A) the Company elects to so convert shares of Series A Preferred Stock pursuant to this Section 6(b) and (B) the number of shares of Series A Preferred Stock to be converted. If the Company validly delivers a Forced Conversion Notice in accordance with this Section 6(b), the Company shall issue the shares of Common Stock no later than five (5) Business Days thereafter (the date of issuance of such shares, the “Forced Conversion Date”).
(c) Upon conversion, each Holder shall provide the Transfer Agent a written instrument or instruments of transfer in form reasonably satisfactory to the Transfer Agent duly executed by the Holder or its duly authorized legal representative and (ii) transfer tax stamps or funds therefor, if required pursuant to Section 6(i).
(d) Immediately prior to the close of business on the Optional Conversion Date or the Forced Conversion Date, as applicable, with respect to a conversion, a Holder shall be deemed to be the holder of record of Common Stock issuable upon conversion of such Holder’s shares of Series A Preferred Stock notwithstanding that the share register of the Company shall then be closed or that certificates representing such Common Stock shall not then be actually delivered to such Holder. Except to the extent that a Holder is not able to convert its shares of Series A Preferred Stock into Common Stock as a result of the Company not having sufficient authorized capital under its Articles of Incorporation, on the Optional Conversion Date or the Forced Conversion Date, as applicable, dividends shall cease to accrue on the shares of Series A Preferred Stock so converted and all other rights with respect to the shares of Series A Preferred Stock so converted, including the rights, if any, to receive notices, will terminate, except only the rights of Holders thereof to receive the number of whole shares of Common Stock into which such shares of Series A Preferred Stock have been converted. As promptly as practical after the conversion hereunder of any shares of Series A Preferred Stock into shares of Common Stock, the Transfer Agent shall deliver to the applicable Holder an Ownership Notice identifying the number of full shares of Common Stock to which such Holder is entitled.
(e) The Conversion Rate shall be determined by adding subject to the sum of following adjustments (except as provided in Section 6(f)):
(i) If the quotient obtained by dividing Company pays a dividend (xor other distribution) in shares of Common Stock to holders of the outstanding principal amount Common Stock, in their capacity as holders of this Debenture to be converted and (y) Common Stock, then the Conversion Price Rate in effect immediately following the record date for such dividend (as defined herein), and (iior distribution) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to shall be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of following fraction: OS0 where OS0 = the number of shares of Common Stock issuable upon a conversion hereunderoutstanding immediately prior to the record date for such dividend or distribution; and OS1 = the sum of (A) the number of shares of Common Stock outstanding immediately prior to the record date for such dividend or distribution and (B) the total number of shares of Common Stock constituting such dividend.
(Bii) Notwithstanding anything If the Company subdivides or splits the shares of Common Stock into a greater or lesser number of shares of Common Stock, then the Conversion Rate in effect immediately following the effective date of such share subdivision or split shall be divided by the following fraction: OS0 where OS0 = the number of shares of Common Stock outstanding immediately prior to the contrary contained hereineffective date of such share subdivision or split; and OS1 = the number of shares of Common Stock outstanding immediately after the opening of business on the effective date of such share subdivision or split.
(iii) If the Company combines or reclassifies the shares of Common Stock into a greater or lesser number of shares of Common Stock, if then the Conversion Rate in effect immediately following the effective date of such share combination or reclassification shall be divided by the following fraction: OS0 where OS0 = the number of shares of Common Stock outstanding immediately prior to the effective date of such share combination or reclassification; and OS1 = the number of shares of Common Stock outstanding immediately after the opening of business on the effective date of such share combination or reclassification.
(iv) If the Company issues by reclassification of its shares of Common Stock any Equity Interests (including any reclassification in connection with a merger, consolidation or business combination in which the Company is the surviving Person), then the Conversion Date:Rate in effect immediately following the effective date of such reclassification shall be divided by the following fraction: OS0 where OS0 = the number of shares of Common Stock outstanding immediately prior to the effective date of such share issuance by reclassification; and OS1 = the number of shares of Common Stock outstanding immediately after the opening of business on the effective date of such share issuance by reclassification.
(v) In the case the Company effects a Pro Rata Repurchase of Common Stock (in each case other than in connection with a Change of Control) then the Conversion Rate shall be adjusted to the rate determined by multiplying the Conversion Rate in effect immediately prior to the effective date of such Pro Rata Repurchase by a fraction of which the numerator shall be (A) the product of (1) the number of shares of Common Stock at the time authorized, unissued outstanding immediately before such Pro Rata Repurchase and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for Market Value of a share of Common Stock on the trading day immediately preceding the first public announcement by the Company or any of its Affiliates of the intent to effect such conversion Pro Rata Repurchase, minus (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3B) the Common Stock is not listed or quoted for trading on aggregate purchase price of the OTC or on a Subsequent Market;
Pro Rata Repurchase, and of which the denominator shall be the product of (41) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance number of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal outstanding immediately prior to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) Pro Rata Repurchase minus the number of days for which shares of Common Stock so repurchased and (2) the Market Value per share of Common Stock on the trading day immediately preceding the first public announcement by the Company or any of its Affiliates of the intent to effect such principal amount was outstandingPro Rata Repurchase.
(Cvi) This Debenture shall be convertible into Subject to clause (vii) below, if the Company issues to holders of shares of the Common Stock, in their capacity as holders of Common Stock, rights, options or warrants entitling them to subscribe for or purchase shares of Common Stock at less than the option Market Value determined on the Ex-Date for such issuance, then the Conversion Rate in effect immediately following the close of business on the Holder, in whole or in part at any time and from time to time, after the Original Issue Ex-Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, for such issuance shall be irrevocable. Conversions hereunder shall have divided by the effect following fraction: OS0 + X OS0 + Y where OS0 = the number of lowering shares of Common Stock outstanding at the outstanding principal amount close of this Debenture plus all accrued and unpaid interest thereon in an amount equal to business on the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the record date of for such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.issuance;
Appears in 6 contracts
Sources: Preferred Restructuring Agreement (Equitrans Midstream Corp), Preferred Restructuring Agreement (EQM Midstream Partners, LP), Preferred Restructuring Agreement (Equitrans Midstream Corp)
Conversion. (Aa) Conversion at Option of Holder.
(i) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (as defined in Section 5) (subject to the limitations on conversion set forth in Section 4(a)(ii3(b) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) equals the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and by (y) the Conversion Price (as defined hereinin Section 3(c)(i), and ). The Obligor shall deliver Common Stock certificates to the Holder prior to the Fifth (ii5th) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Trading Day after a Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(Bii) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
: (1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay principal and interest hereunder in shares of Common Stock;
; (2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
; (43) the Company Obligor has failed to timely satisfy its conversion obligations hereunderconversion; or
or (54) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(iiSection 3(b), then, at the Company may not pay interest option of the Holder, the Obligor, in kind and must pay interest in cash by deliveringlieu of delivering shares of Common Stock pursuant to Section 3(a)(i), shall deliver, within three (3) Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on plus any interest due therein divided by the Conversion Price, chosen by the Holder, and multiplied by the highest closing price of the stock from date of the conversion notice till the date that such cash payment is made. Further, if the Obligor shall not have delivered any cash due in respect of conversion of this Debenture or as payment of interest thereon by the fifth (5th) Trading Day after the Conversion Date and (b) Date, the product of (x) Holder may, by notice to the quotient obtained by dividing .12 by 360 and (y) Obligor, require the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into Obligor to issue shares of Common Stock at pursuant to Section 3(c), except that for such purpose the option Conversion Price applicable thereto shall be the lesser of the Holder, in whole or in part at any time Conversion Price on the Conversion Date and from time to time, after the Original Issue Date (Conversion Price on the date of such Holder demand. Any such shares will be subject to the limitations on conversion set forth in Section 4(a)(iiprovisions of this Section.
(iii) hereof). The Holder shall effect conversions by delivering to the Company Obligor a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company Obligor in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company Obligor shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 5 contracts
Sources: Secured Convertible Debenture (Directview Inc), Debenture Agreement (Tech Laboratories Inc), Secured Convertible Debenture (Eyi Industries Inc.)
Conversion. (A) This Debenture If the Borrower shall elect to convert any particular Borrowing comprised of Loans denominated in Dollars pursuant to this Section 2.3 from one Type of Loan to the other Type only in part, then, from and after the date on which such conversion shall be convertible into shares effective, such particular Borrowing shall, for all purposes of Common Stock at this Agreement (including, without limitation, for purposes of subsequent application of this sentence), be deemed to instead constitute two Borrowings (each originally advanced on the option same date as such particular Borrowing), one comprised of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on subsequent conversion set forth in Section 4(a)(iiaccordance with this Agreement) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon Eurocurrency Loans in an aggregate principal amount equal to the applicable conversionportion of such Borrowing so elected by the Borrower to be comprised of Eurocurrency Loans and the second comprised of (subject to subsequent conversion in accordance with this Agreement) Base Rate Loans in an aggregate principal amount equal to the portion of such particular Borrowing so elected by the Borrower to be comprised of Base Rate Loans. If the Borrower shall elect to have multiple Interest Periods apply to any particular Borrowing comprised of Eurocurrency Loans denominated in the same currency, which then, from and after the date such multiple Interest Periods commence, such particular Borrowing shall, for all purposes of this Agreement (including, without limitation, for purposes of subsequent application of this sentence), be deemed to constitute a number of separate Borrowings (each originally commencing on the same date as such particular Borrowing) equal to the number of, and corresponding to, the different Interest Periods so selected, each such deemed separate Borrowing corresponding to a particular selected Interest Period comprised of (subject to subsequent conversion in accordance with this Agreement) Eurocurrency Loans in an aggregate principal amount equal to the portion of such particular Borrowing so elected by the Borrower to have such Interest Period. This Section 2.3(f) shall be evidenced by notations made applied appropriately in the Conversion Notice. The Holder and event that the Company Borrower shall maintain records showing make the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative elections described in the absence of manifest errortwo preceding sentences at the same time with respect to the same particular Borrowing.
Appears in 5 contracts
Sources: Credit Agreement (Transocean Partners LLC), Credit Agreement (Transocean Partners LLC), Credit Agreement (Transocean Ltd.)
Conversion. (i) Conversion at Option of Holder.
(A) This Debenture shall ------------------------------ be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding equals the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and by (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if -------- the Company Holder shall have timely elected to pay receive the interest due on a Conversion Date in cash pursuant to the terms hereofcash, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a --------- "Conversion Notice") including a completed Conversion Schedule in the form of ----------------- Schedule 1 to the Conversion Notice (on each Conversion Date, the "Conversion ---------- ---------- Schedule"). The Conversion Notice Schedule shall set forth the remaining principal -------- amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal --------------- amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made entries set forth in the Conversion NoticeSchedule. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 4 contracts
Sources: Debenture Agreement (Aquatic Cellulose International Corp), Debenture Agreement (Aquatic Cellulose International Corp), Debenture Agreement (Aquatic Cellulose International Corp)
Conversion. Subject to and in compliance with, the provisions contained herein, the Holder is entitled, at his option, at any time prior to the Maturity Date, or in case this Note or some portion hereof shall have been called for prepayment prior to such date, then, in respect of this Note or such portion hereof, until and including, but not after, the close of business within 30 days of the date of notice of prepayment, to convert the original principal amount of this Note (Aor any portion thereof), together with accrued but unpaid interest thereon, into fully paid and nonassessable shares (calculated as to each conversion to the nearest share) This Debenture of common stock (the “Shares”) of the Borrower by surrender of this Note, duly endorsed (if so required by the Borrower) or assigned to the Borrower or in blank, to “PSM Holdings, Inc.” at its offices, accompanied by written notice to the Borrower, in the form set forth below, that the holder hereof selects to convert this Note or, if less than the entire principal amount hereof is to be converted, the portion hereof to be converted. Such conversion shall be convertible into shares effected at the per share rate of Common Stock at sold pursuant to a Qualified Offering by the option Borrower. For purposes of this Section 4, the term “Qualified Offering” shall mean one or more offerings (whether or not proceeds are received by the Borrower pursuant to such offering) of debt or equity securities of the Holder, Borrower to non-affiliates in whole or in part the aggregate amount of at any time and from time to time, least $1,000,000 commenced after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof)Issuance Date. The number of shares of Common Stock issuable upon a conversion hereunder price shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation lowest of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposesoffering price per common share, or held as treasury the conversion or exercise price for common stock, is insufficient to pay interest hereunder in shares any such Qualified Offering. No fractions of Common Stock;
(2) the Underlying Shares issuable for such conversion (including will be issued on conversion, but instead of any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), thenfractional interest, the Company may not Maker will pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingadjustments as provided herein.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 4 contracts
Sources: Convertible Promissory Note (PSM Holdings Inc), Convertible Promissory Note (PSM Holdings Inc), Convertible Promissory Note (PSM Holdings Inc)
Conversion. (Aa) This Debenture shall be convertible into shares of Common Stock at the option Upon termination of the HolderMerger Agreement pursuant to Sections 8.2(d), in whole 8.3(a) or in part at any time 8.3(b) thereof (the "Conversion Date"), all Loans and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder Obligations shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to automatically be converted and (ythe "Conversion") the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of into the number of shares of Common Stock issuable upon a conversion hereunderof Borrower equal to the aggregate amount of the Loans and Obligations (without duplication) then outstanding, divided by the Exchange Ratio calculated as of the Conversion Date, as such Exchange Ratio may have been adjusted pursuant to the terms of the Merger Agreement.
(Bb) Notwithstanding anything The Conversion shall be deemed to have been made immediately before the contrary contained herein, if close of business on any the Conversion Date:
, so that the rights of Lender under this Agreement and the Security Agreement shall cease at such time (1other than those rights that expressly survive the termination of this Agreement) and Lender shall be treated for all purposes as having become the record holder or holders of the Common Stock described in Section 3.6(a) at such time, and the number of shares of Common Stock to be received by Lender shall be determined at such time.
(c) Borrower covenants that it will at all times reserve and keep available out of its authorized Common Stock, solely for the time authorizedpurpose of issuance upon conversion of the Loans and Obligations as herein provided, unissued such number of shares of Common Stock as shall be issuable upon the conversion of the entire Commitment. Borrower covenants that all shares of Common Stock which shall be so issuable shall be duly and unreserved validly issued and fully-paid and non-assessable.
(d) Borrower covenants that if any shares of Common Stock required to be reserved for all purposesissuance upon conversion of the Loans and Obligations require registration with or approval of any Governmental Authority under any federal or state law before such shares may be issued upon conversion, Borrower will, at its expense and as expeditiously as possible, cause such shares to be duly registered or approved, as the case may be.
(e) The issuance of certificates for shares of Common Stock upon the Conversion shall be made within one (1) Business Day of the Conversion Date without charge to Lender for any tax in respect of the issuance of such certificates, and such certificates shall be issued in the respective names of, or held in such names as treasury stockmay be directed by, is insufficient to pay interest hereunder in the holder of this Term Note.
(f) To the extent that the Loans and Obligations are not converted into shares of Common Stock;
(2) the Underlying Shares issuable for , such conversion (including any interest portion shall remain a secured debt of Borrower payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under accordance with the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount terms of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.Agreement
Appears in 4 contracts
Sources: Credit Agreement (Divine Inc), Credit Agreement (Divine Inc), Credit Agreement (Open Market Inc)
Conversion. (A) This Debenture shall Warrant may be convertible into shares of Common Stock at converted by the option of the Holderholder hereof, in whole or in part at part, into shares of Class A Common Stock, during normal business hours on any time and from time to time, after the Original Issue Date (subject Business Day on or prior to the limitations on conversion set forth in Expiration Date, by surrender of this Warrant to the Company at its office maintained pursuant to Section 4(a)(ii13.2(a) hereof). The , accompanied by a conversion notice in substantially the form attached to this Warrant (or a reasonable facsimile thereof) duly executed by such holder, and such holder shall thereupon be entitled to receive a number of duly authorized, validly issued, fully paid and nonassessable shares of Class A Common Stock issuable upon a conversion hereunder shall be determined by adding equal to the quotient of:
(i) the excess of:
(A) an amount equal to the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1aa) the number of shares of Class A Common Stock at determined as provided in Section 2 hereof which such holder would be entitled to receive upon exercise of this Warrant for the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in number of shares of Class A Common Stock;
Stock designated in such conversion notice multiplied by (2bb) the Underlying Shares issuable for Current Market Price of each such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the share of Class A Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 so designated and (y) the Current Market Price of any Other Securities and the fair value of any other property (determined in good faith by the Board of Directors of the Company) such holder would be entitled to receive upon exercise of this Warrant for the number of days for which shares of Class A Common Stock designated in such principal amount was outstanding.conversion notice
(CB) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to (x) the applicable conversionnumber of shares of Class A Common Stock (without giving effect to any adjustment thereof) designated in such conversion notice multiplied by (y) the Exercise Price
(ii) such Current Market Price of a share of Class A Common Stock. For all purposes of this Warrant (other than this Section 3.1), which any reference herein to the exercise of this Warrant shall be evidenced by notations made deemed to include a reference to the conversion of this Warrant into Class A Common Stock in accordance with the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date terms of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorthis Section 3.1(b).
Appears in 4 contracts
Sources: Warrant Agreement (Kenexa Corp), Warrant Agreement (Kenexa Corp), Warrant Agreement (Kenexa Corp)
Conversion. (Aa) This Debenture The Lender, upon pricing of the IPO, shall be convertible convert the outstanding balance of the Loan (including accrued interest) (the “Outstanding Balance”) into such number of ordinary shares of Common Stock at the option of Company (the Holder, in whole or in part at any time and from time “Conversion Shares”) that equals to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and Outstanding Amount by (y) the Conversion Price per share offer price of the IPO. Following the conversion completed pursuant to this Section the Outstanding Balance shall be reduced to zero.
(as defined herein)b) Upon the conversion pursuant to this Section, the Lender’s rights of repayment of the Outstanding Balance shall be extinguished.
(c) No fractional shares shall be issued to the Lender, and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company Shares shall have timely elected to pay the interest due on a Conversion Date in cash pursuant be rounded to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereundernearest whole share.
(Bd) Notwithstanding anything The Company and the Lender hereby undertake to execute any document as shall be required by the contrary contained herein, if on any Company in connection with the issuance of the Conversion Date:Shares.
(1e) The Lender understands that the number of ordinary shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares Company issuable upon conversion of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not Outstanding Balance will be sold without volume restrictions pursuant to “restricted securities” within the meaning of Rule 144(k) promulgated 144 under the Securities Act of 1933, as amended (as defined the “1933 Act”) and may not be sold, pledged, assigned or transferred and must be held indefinitely in Section 6);
the absence of (3i) an effective registration statement under the Common Stock is not listed 1933 Act and applicable state securities laws with respect thereto or quoted for trading on the OTC (ii) an available exemption from, or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), thentransaction not subject to, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount registration requirements of the Debentures to be converted on such Conversion Date and (b) the product 1933 Act as evidenced by an opinion of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering counsel satisfactory to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice")that such registration is not required. The Conversion Notice certificates for the ordinary shares of the Company issuable upon conversion of the Outstanding Balance shall set forth bear the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent following or similar legend (in addition to such other restrictive legends as are required or deemed advisable under any applicable law or any other agreement to which the Company is a party) “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE SOLD, DISTRIBUTED, OFFERED, PLEDGED, ENCUMBERED, ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION, AN AVAILABLE EXEMPTION THEREFROM, OR A TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR UNDER THE SECURITIES LAWS OF ANY STATES. UNLESS SOLD PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.”
(f) The Lender consents to the conversion at issue. The date Company making a notation on which a Conversion Notice is delivered is its records or giving instructions to any transfer agent of the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to securities of the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have implement the effect of lowering the outstanding principal amount of this Debenture plus all accrued restrictions on transfer set forth and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errordescribed herein.
Appears in 3 contracts
Sources: Convertible Loan Agreement (Diginex LTD), Convertible Loan Agreement (Diginex LTD), Convertible Loan Agreement (Diginex LTD)
Conversion. (a) Subject to the Ownership Cap, the Holder may, at its election, upon surrender (either in person, by mail (postage prepaid) or other means of delivery) of this Debenture along with a completed notice of conversion in the form attached hereto as Schedule "A" (the "Conversion Notice") This Debenture shall be convertible into shares of Common Stock at the option principal office of the HolderCompany in Toronto, in whole or in part Ontario at any time and from time to time, after time following the Original Issue Date (subject and prior to the limitations close of business on conversion set forth the Maturity Date, convert all or portions of the outstanding Principal Sum from time to time (the "Conversion Date") at the Conversion Price ("Holder Conversion"), in Section 4(a)(ii) hereofincrements of $1,000.00, unless there is less than $1,000.00 of the Principal Sum then outstanding (in which case the balance of the outstanding Principal Sum shall be convertible). The delivery of the Conversion Notice duly executed by the Holder and the surrender of this Debenture shall be deemed to constitute a valid and enforceable contract between the Holder and the Company whereby (i) the Holder subscribes for the number of shares Common Shares which the Holder shall be entitled to receive upon such Holder Conversion, (ii) the Holder releases the Company from all liability thereon or from all liability with respect to the portion of the Principal Sum converted, as the case may be, and (iii) the Company agrees that the surrender of this Debenture for Holder Conversion constitutes full payment of the subscription price for the Common Shares issuable on such Holder Conversion. To effect conversions hereunder, the Holder shall be required to physically surrender the Debenture to the Company.
(b) As promptly as possible after receipt of the Conversion Notice and this Debenture, but subject to Section 4.5 hereof, the Company shall issue or cause to be issued a certificate, direct registration statement or entry into the CDS system in the name or names of the person or persons specified in the Conversion Notice for that number of Common Stock Shares deliverable upon the Holder Conversion.
(c) If converted prior to the date that is 4 months and a day after the date hereof, the Holder acknowledges and agrees that a legend may be placed on the certificates, DRS Statements or CDS Position representing the Common Shares to the effect that the securities represented by such certificates, DRS Statements or CDS Position are subject to a hold period and may not be traded until the expiry of such hold period except as permitted by applicable securities legislation.
(d) The number of Conversion Shares issuable upon a any conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) by (y) where (x) is equal to the aggregate amount of the outstanding principal amount of this Debenture Principal Sum to be converted as of the Conversion Date and (y) is the Conversion Price Price.
(as defined herein)e) Upon completion of the Holder Conversion, and (ii) the rights of the Holder to receive, in respect of the amount equal hereof so converted, the portion of the Principal Sum so converted shall cease and the Holder or the other person or persons in whose name or names any Common Shares shall be issuable upon such Holder Conversion shall be deemed to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price have become on the Conversion Date, provided, that if Date the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation holder or holders of the number record of shares of such Common Stock issuable upon a conversion hereunderShares represented thereby.
(Bf) Notwithstanding anything to In the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on event that only a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount portion of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (Principal Sum is subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this DebentureConversion, the Holder is will be entitled to receive a replacement Debenture representing the Principal Sum not be required subject to physically surrender this Debenture to Holder Conversion on the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued same terms and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorprovisions contained herein.
Appears in 3 contracts
Sources: Securities Purchase Agreement (SOL Strategies Inc.), Securities Purchase Agreement (SOL Strategies Inc.), Securities Purchase Agreement (SOL Strategies Inc.)
Conversion. (Ai) This At any time after the Original Issue Date until this Debenture is no longer outstanding, this Debenture, including interest and principal, shall be convertible into shares of Common Stock ("Shares") at a price of eighty percent (80%) of the average of the five lowest volume weighted average prices ("VWAPs"), determined on the then current trading market for the Company's common stock, for ten (10) trading days prior to conversion (the "Set Price" and the "Pricing Period"), at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form of Notice of Conversion attached hereto as Exhibit Annex A (a "Notice of Conversion"), specifying the date on which such conversion (each a "Conversion") is to be effected (a "Conversion NoticeDate"). The If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall set forth be the remaining principal amount date that such Notice of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issueConversion is provided hereunder. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this DebentureTo effect conversions hereunder, the Holder is shall not be required to physically surrender this Debenture Debentures to the Company. The Company in order shall deliver any objection to effect conversionsany Notice of Conversion within five (5) Business Days of receipt of such notice. Subject to Section 4(b)The Holder and any assignee, each Conversion Noticeby acceptance of this Debenture, once givenacknowledge and agree that, shall be irrevocable. Conversions hereunder shall have by reason of the effect provisions of lowering this paragraph, following conversion of a portion of this Debenture, the outstanding unpaid and unconverted principal amount of this Debenture plus all accrued and unpaid interest thereon in an may be less than the amount equal stated on the face hereof. Any disagreement as to the applicable Set Price, Pricing Period, Shares due or any other issues relating to this Note shall be settled in accordance with the Dispute Resolution Procedures described below.
ii) Shares from any such conversion delivered to Company by 4:00 pm EST will be delivered to Holder by 2:30 pm EST within five (5) business days of conversion notice delivery (see 4(i)). If those shares are not delivered in accordance with this timeframe stated in this Section 4(ii), at any time for any reason prior to offering those shares for sale in a private transaction or in the public market through its broker, Holder may rescind that particular conversion to have the conversion amount returned to the note balance with the conversion shares returned to the Borrower. The Company will make its commercially reasonable best efforts to deliver shares to Holder same day I next day. For each conversion, which shall be evidenced by notations made in the event that shares are not delivered by the third business day (inclusive of the day of the conversion), a penalty of $2,000 per day will be assessed for each day after the third business day (exclusive of the day of the conversion) until share delivery is made. Any such penalty will be added to the principal balance of the Note, under Holders expectation that any penalty amounts will tack back to the original date of the note).
iii) The applicable portion of this Note shall not be convertible during any time that, and only to the extent that, the number of Shares to be issued to Holder upon such Conversion, when added to the number of shares of Common Stock, if any, that the Holder otherwise beneficially owns (outside of this Note, and not including any other securities of the Company held by Holder having a provision substantially similar to this paragraph) at the time of such Conversion, would exceed 4.99% (the “Maximum Percentage”) of the number of shares of Common Stock of the Company outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon Conversion Noticeof this Note held by the Holder, as determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Beneficial Ownership Limitation”). The Holder and Beneficial Ownership Limitation provisions of this Section 4(iii) may be waived by ▇▇▇▇▇▇, at the Company shall maintain records showing the principal amount converted and the date election of such conversions. In Holder, upon not less than sixty-one (61) days prior written notice to the event of Company, to change the Beneficial Ownership Limitation to any dispute or discrepancy, the records other percentage of the Holder number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon Conversion of the Note held by the Holder. The provisions of this paragraph shall not be controlling construed and determinative implemented in a manner otherwise than in strict conformity with the absence terms of manifest errorthis Section 4(iii) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation.
Appears in 3 contracts
Sources: Securities Agreement (Allezoe Medical Holdings Inc), Securities Agreement (Allezoe Medical Holdings Inc), Securities Agreement (Allezoe Medical Holdings Inc)
Conversion. (Aa) This Debenture shall be convertible The Holder of this Note is entitled at any time before the close of business on the date this Note is paid in full pursuant to the terms hereof, but prior to such payment (or, if the Holder has exercised his right to require the Company to redeem this Note or a portion hereof pursuant to Section 2 hereof, then in respect of this Note or such portion hereof, until and including, but (unless the Company defaults in making the payment due upon redemption) not after, 5:00 p.m., New York City time, on the Business Day prior to the Redemption Date), to convert this Note (or any portion of the principal amount hereof that is an integral multiple of $1,000), into fully paid and nonassessable Common Stock (as hereinafter defined) of the Company at the rate of 166.6667 shares of Common Stock for each $1,000 principal amount of this Note (or at the option then current adjusted rate if an adjustment has been made as provided below) (the "Conversion Rate") by surrender of this Note accompanied by written notice to the Company that the Holder hereof elects to convert this Note (or if less than the entire principal amount hereof is to be converted, specifying the portion hereof to be converted). If less than the entire principal amount of this Note is to be converted, it shall be surrendered to the Company at the Designated Office (with, if the Company so requires, due endorsement by, or a written instrument of transfer in form reasonably satisfactory to the Company duly executed by the Holder hereof or his attorney duly authorized in writing), and the Company shall execute and make available for delivery to the Holder without service charge, a new Note, containing identical terms and conditions, each in an authorized denomination in aggregate principal amount equal to and in exchange for the unconverted portion of the Holderprincipal of the Note so surrendered. The Company shall deliver to the Holder of this Note as soon as practicable after delivery by the Holder of this Note to the Company, but not more than fifteen (15) Trading Days after such delivery, the certificates representing shares of Common Stock issuable upon conversion of this Note and cash in whole or in part at lieu of any time and fractional shares.
(b) The Conversion Rate will be subject to adjustments from time to timetime as follows:
(1) If the Company shall pay or make a dividend or other distribution on Common Stock of the Company payable in Common Stock, after the Original Issue Conversion Rate in effect at the opening of business on the day following the Determination Date (subject to as hereinafter defined) for such dividend or other distribution shall be increased by dividing such Conversion Rate by a fraction of which the limitations on conversion set forth in Section 4(a)(ii) hereof). The numerator shall be the number of shares of Common Stock issuable upon a conversion hereunder outstanding at the close of business on such Determination Date and the denominator shall be determined by adding the sum of such number of shares of Common Stock and the total number of shares of Common Stock constituting such dividend or other distribution, such increase to become effective immediately after the opening of business on the day following such Determination Date.
(2) If the Company shall issue rights, options or warrants to holders of its Common Stock entitling them to subscribe for or purchase Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (7) of this Section 1(b)) of the Common Stock on the Determination Date for such distribution, the Conversion Rate in effect at the opening of business on the day following such Determination Date shall be increased by dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such Determination Date plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on such Determination Date plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following such Determination Date. Upon the expiration of any right, option or warrant to purchase Common Stock the issuance of which resulted in an adjustment to the Conversion Rate pursuant to this paragraph (2) of Section 1(b), if any such right, option or warrant shall expire and shall not have been exercised, the Conversion Rate shall immediately upon such expiration be recomputed to the Conversion Rate which would have been in effect had the adjustment of the Conversion Rate made upon the issuance of such right, option or warrant been made on the basis of offering for subscription or purchase only that number of shares of Common Stock actually purchased upon the exercise of such right, option and warrant actually exercised.
(3) If the outstanding Common Stock of the Company shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, if outstanding Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) If the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section 1(b), (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section 1(b) and (iv) any merger or consolidation to which Section 1(f) applies (the "Distributed Property"), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the Determination Date for such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (7) of this Section 1(b)) of the Common Stock on such Determination Date less the then fair market value of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following such Determination Date; provided, however, that if the Distributed Property consists of shares of capital stock of a subsidiary, the Company will make adequate provision so that the Holder shall have the right to receive upon conversion the amount of such shares of capital stock that such Holder would have received if such Holder had converted such Note on the record date, in which case there will be no adjustment to the Conversion Price. Under the provisions of the Company's Rights Plan, upon conversion of the Note into Common Stock, to the extent that the Rights Plan is still in effect upon such conversion, the Holder will receive, in addition to the Common Stock, the rights described therein (whether or not the rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in the Rights Plan. Any distribution of rights or warrants pursuant to the Rights Plan in compliance with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 1(b).
(5) If the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of Section 1(b)) in aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the twelve (12) months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) of Section 1(b) has been made and (II) the aggregate of any cash plus the fair market value of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock (other than Common Stock purchased by the Company at or below fair market value) concluded within the twelve (12) months preceding the date of payment of such distribution (the "combined cash amount"), exceeds fifty percent (50%) of the net earnings of the Company determined in accordance with GAAP for the trailing twelve month period preceding the date of such distribution (the "aggregate earnings"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the current market price per share of the Common Stock on the date fixed for such determination less an amount equal to the quotient obtained by dividing of (x) the outstanding principal excess of such combined cash amount of this Debenture to be converted and over the aggregate earnings divided by (y) the Conversion Price (as defined herein), number of shares of Common Stock outstanding on such date for determination and (ii) the amount denominator of which shall be equal to the current market price per share of the Common Stock on such date for determination.
(I6) If the product Company issues Common Stock or securities (including options and warrants) convertible into, or exchangeable for, Common Stock at a price per share (or having a conversion or exchange price per share) that is less than the fair market value per share of the Common Stock at the date of issuance (xbut excluding issuances: (a) pursuant to any bona fide plan for the outstanding principal amount benefit of this Debenture employees or directors of the Company now in effect or any comparable plans adopted in the future, provided such future plans contain terms and conditions that, taken as a whole, are no more favorable than the Company's current plans; (b) to be converted acquire all or any portion of a business in an arm's-length transaction between the Company and an unaffiliated third party including, if applicable, issuances upon exercise of options or warrants assumed in connection with such an acquisition; and (yc) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms exercise of warrants, rights or options, or upon the conversion of convertible securities, which are issued and outstanding on the date hereof, subsection (ii) shall not or which may be used issued in the calculation future at fair value and with an exercise price or conversion price at least equal to the current market price per share (determined as provided in paragraph (7) of this Section 1(b)) of the Common Stock at the time of issuance of such warrant, right, option or convertible security, the Conversion Rate in effect at the opening of business on the day following the date on which any such issuance is made shall be increased by multiplying such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock issuable upon a (assuming for purposes hereof the conversion hereunder.
or exercise of all outstanding securities convertible into or exchangeable for Common Stock) outstanding on such date plus the number of additional shares of Common Stock issued (B) Notwithstanding anything to or into which the contrary contained hereinconvertible securities may convert), if on any Conversion Date:
(1) and the denominator of which shall be the sum of the number of shares of Common Stock at (assuming for purposes hereof the time authorized, unissued and unreserved conversion or exercise of all outstanding securities convertible into or exchangeable for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) outstanding on such date plus the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance number of such shares of Common Stock which the aggregate consideration receivable by the Company for the total number of shares of Common Stock so issued (or into which the convertible securities may convert) would result in a violation purchase at the fair market value per share of Sections 4(a)(iithe Common Stock on such date. An adjustment made pursuant to this paragraph (6) shall be made on the next Business Day following the date on which any such issuance is made and shall be effective retroactively immediately after the close of business on such date. For purposes of this paragraph (6), then, the aggregate consideration receivable by the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days connection with the issuance of each applicable Conversion Date, an amount in cash equal to the product shares of (a) the outstanding principal amount Common Stock or of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be securities convertible into shares of Common Stock at shall be deemed to be equal to the option sum of the Holderaggregate offering price (before deduction of underwriting discounts or commissions and expenses payable to third parties) of all such securities plus the minimum aggregate amount, if any, payable upon conversion of any such convertible securities into shares of Common Stock.
(7) For the purpose of any computation under paragraphs (2), (4), (5) or (6) of this Section 1(b), the current market price per share of Common Stock on any date shall be deemed to be the average of the daily Closing Prices for the five (5) consecutive Trading Days commencing ten (10) Trading Days before the earlier of (i) the day in whole or in part at any time question and from time to time, after (ii) the Original Issue Date (subject day before the "ex" date with respect to the limitations on conversion set forth in Section 4(a)(ii) hereof)issuance or distribution requiring such computation. The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount For purposes of this Debenture and all accrued and unpaid interest thereon subsequent paragraph, the term "ex date", when used with respect to any issuance or distribution, means the conversion at issue. The first date on which a Conversion Notice is delivered is the "Conversion DateCommon Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution." Unless
(c) The Company shall promptly notify the Holder is converting pursuant to Section 8(b) of any adjustment to the entire principal amount outstanding under Conversion Rate required by paragraphs (1), (2), (3), (4), (5) and (6) of this DebentureSection 1(b).
(d) The Company shall at all times reserve and keep available, free from preemptive rights, out of its authorized but unissued Common Stock, for the purpose of effecting the conversion of the Note, the Holder is not full number of shares of Common Stock then issuable upon the conversion of this Note.
(e) The Company agrees that all Common Stock which may be required to physically surrender this Debenture to delivered upon conversion of the Company in order to effect conversions. Subject to Section 4(b)Note, each Conversion Noticeupon such delivery, once given, will have been duly authorized and validly issued and will be fully paid and nonassessable and free of preemptive rights (and shall be irrevocable. Conversions hereunder shall have issued out of the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. Company's authorized but unissued Common Stock).
(f) In the event of any dispute recapitalization or discrepancyreclassification of the Common Stock (other than a change in par value, or as a result of a subdivision or combination covered by paragraph (3) of this Section 1(b)) (collectively, a "Capital Reorganization"), the records Company shall execute and deliver to the Holder a supplemental agreement providing that the Holder has the right thereafter, during the period this Note shall be convertible as specified in Section 1(a), to convert this Note only into the kind and amount of securities, cash and other property receivable upon such Capital Reorganization by a holder of the number of shares of Common Stock of the Company into which this Note might have been converted immediately prior to such Capital Reorganization, and, if holders of the Company's Common Stock are given the right to elect the kind or amount of securities, cash or other property receivable upon such Capital Reorganization, then the Holder shall be controlling provided the right to so elect and determinative in notice of such right to elect on the absence same terms and conditions offered to the holders of manifest errorthe Company's Common Stock.
(g) The Company shall not consummate a transaction pursuant to which it is acquired by or merged or consolidated into another Person or convey, transfer or sell all or substantially all of its assets (an "Acquisition Event"), unless the successor Person (or its ultimate parent, if applica
Appears in 3 contracts
Sources: Security Agreement (Scansoft Inc), Purchase Agreement (Scansoft Inc), Purchase Agreement (Scansoft Inc)
Conversion. Notwithstanding any covenants in this Agreement requiring Cartus or CRC to maintain its “corporate existence”, such entity may elect to convert their status from that of a Delaware corporation to that of a Delaware limited liability company, either by filing a certificate of conversion with the Delaware Secretary of State or by merging with and into a newly formed Delaware limited liability company (Asuch conversion or merger, as applicable, being herein called a “Conversion”) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(iiconditions that:
(a) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount Person formed by such Conversion (any such Person, the “Surviving Entity”) is an entity organized and existing under the laws of this Debenture the United States of America or any State thereof, (y) such Surviving Entity expressly assumes, by an agreement in form and substance satisfactory to be converted the Issuer and its assignees, performance of every covenant and obligation of its predecessor entity under the Transaction Documents to which such predecessor entity is a party and (z) such Surviving Entity delivers to the other parties to that certain Fifth Omnibus Amendment dated as of April 10, 2007 (such parties, the “Amendment Parties”) an opinion of counsel that such Surviving Entity is duly organized and validly existing under the laws of its organization, has duly executed and delivered such supplemental agreement, and such supplemental agreement is a valid and binding obligation of such Surviving Entity, enforceable against such Surviving Entity in accordance with its terms (subject to customary exceptions relating to bankruptcy and equitable principles) and covering such other matters as the Amendment Parties may reasonably request;
(b) all actions necessary to maintain the perfection of the security interests or ownership interests created by such entity under the Transaction Documents in favor of CRC or the Issuer shall have been taken, as evidenced by an opinion of counsel reasonably satisfactory to the Amendment Parties;
(c) if such entity is the Servicer, no Servicer Default or Unmatured Servicer Default is then occurring or would result from such Conversion;
(d) in the case of a Conversion of CRC, (x) the organizational documents of any Surviving Entity with respect to CRC shall contain limitations on its business activities and requirements for independent directors or managers substantially equivalent to those set forth in its current organizational documents, and (y) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ or other counsel reasonably satisfactory to the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company other Amendment Parties shall have timely elected to pay the interest due on a Conversion Date in cash pursuant delivered an opinion of counsel reasonably satisfactory to the terms hereofother Amendment Parties that such Conversion will not in and of itself alter the conclusions set forth in its opinions previously issued in connection with the Transaction Documents with respect to true sale matters, subsection substantive consolidation matters and bankruptcy issues relating to “home sale proceeds” to the extent relating to CRC; and
(iie) each Amendment Party shall not have received such other documents as such Amendment Party may reasonably request. In connection with any such Conversion and the resulting change in name of such entity, Cartus and CRC shall be used required to comply with the name change covenants in the calculation Transaction Documents, except that to the extent 30 days prior written notice of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything name change is required, such notice period shall be reduced to five Business Days. From and after any such Conversion effected in compliance with the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of above conditions: (a) all references in the outstanding principal amount of the Debentures Transaction Documents to any Person which has altered its corporate structure to become a limited liability company shall be deemed to be converted on references to the Surviving Entity as successor to such Conversion Date and Person; (b) all representations, warranties and covenants in the product Transaction Documents which state that any of Cartus or CRC is or is required to be a corporation shall be deemed to permit and require the Surviving Entity to be a limited liability company; (xc) all references to such Person’s certificate of incorporation, other organizational documents, capital stock, corporate action or other matters relating to its corporate form will be deemed to be references to the quotient obtained by dividing .12 by 360 Surviving Entity’s organizational documents and analogous matters relating to limited liability companies; (d) all references to such Person’s directors or independent directors will be deemed to be references to the Surviving Entity’s directors, independent directors, managers or independent managers, as the case may be and (ye) the number of days for which such principal amount was outstanding.
(C) This Debenture no representation, warranty or covenant in any Transaction Document shall be convertible into shares of Common Stock at the option deemed to be breached or violated solely as a result of the Holderfact that the Surviving Entity in any Conversion may be disregarded as a separate entity for federal, in whole state or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Datelocal income tax purposes." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 3 contracts
Sources: Fee Receivables Purchase Agreement (NRT Settlement Services of Missouri LLC), Receivables Purchase Agreement (NRT Settlement Services of Missouri LLC), Purchase Agreement (NRT Settlement Services of Missouri LLC)
Conversion. (ANotwithstanding any covenants in this Agreement requiring Cartus, CFC or ARSC to maintain its “corporate existence”, such entity may elect to convert their status from that of a Delaware corporation to that of a Delaware limited liability company, either by filing a certificate of conversion with the Delaware Secretary of State or by merging with and into a newly formed Delaware limited liability company(such conversion or merger, as applicable, being herein called a “Conversion”) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(iiconditions that:
(a) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount Person formed by such Conversion (any such Person, the “Surviving Entity”) is an entity organized and existing under the laws of this Debenture the United States of America or any State thereof, (y) such Surviving Entity expressly assumes, by an agreement in form and substance satisfactory to be converted the applicable transferee and its assignees, performance of every covenant and obligation of such Person under the Transaction Documents to which such Person is a party and (z) such Surviving Entity delivers to the other parties to the Fifth Omnibus Amendment hereto dated as of April 10, 2007 (such parties, the “Amendment Parties”) an opinion of counsel that such Surviving Entity is duly organized and validly existing under the laws of its organization, has duly executed and delivered such supplemental agreement, and such supplemental agreement is a valid and binding obligation of such Surviving Entity, enforceable against such Surviving Entity in accordance with its terms (subject to customary exceptions relating to bankruptcy and equitable principles) and covering such other matters as the Amendment Parties may reasonably request;
(b) all actions necessary to maintain the perfection of the security interests or ownership interests created by such Person under the Transaction Documents to which such Person is a party in connection with such Conversion shall have been taken, as evidenced by an opinion of counsel reasonably satisfactory to the Amendment Parties;
(c) so long as such Person is the Servicer, no Servicer Default or Unmatured Servicer Default is then occurring or would result from such Conversion;
(d) in the case of a Conversion of CFC or ARSC, (x) the organizational documents of any Surviving Entity with respect to CFC or ARSC shall contain limitations on its business activities and requirements for independent directors or managers substantially equivalent to those set forth in its current organizational documents, and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ shall have timely elected to pay the interest due on a Conversion Date in cash pursuant delivered an opinion of counsel reasonably satisfactory to the terms hereofAmendment Parties that such Conversion will not, subsection in and of itself, alter the conclusions set forth in its opinions previously issued in connection with the Transaction Documents with respect to true sale matters, substantive consolidation matters and bankruptcy issues relating to “home sale proceeds” (iito the extent such opinions relate to such Person); and
(e) each Amendment Party shall not have received such other documents as such Amendment Party may reasonably request. In connection with any such Conversion and the resulting change in name of such entity, Cartus, CFC and/or ARSC, as applicable, shall be used required to comply with the name change covenants in the calculation Transaction Documents, except that to the extent 30 days prior written notice of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything name change is required, such notice period shall be reduced to five Business Days. From and after any such Conversion effected in compliance with the contrary contained hereinabove conditions, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) all references in the outstanding principal amount of the Debentures Transaction Documents to any Person which has altered its corporate structure to become a limited liability company shall be deemed to be converted on references to the Surviving Entity as successor to such Conversion Date and Person, (b) all representations, warranties and covenants in the product Transaction Documents which state that any of Cartus, CFC or ARSC is or is required to be a corporation shall be deemed to permit and require the Surviving Entity to be a limited liability company, (xc) all references to such Person’s certificate of incorporation, other organizational documents, capital stock, corporate action or other matters relating to its corporate form will be deemed to be references to the quotient obtained by dividing .12 by 360 organizational documents and analogous matters relating to limited liability companies, (d) all references to such Person’s directors or independent directors will be deemed to be references to the Surviving Entity’s directors, independent directors, managers or independent managers, as the case may be and (ye) the number of days for which such principal amount was outstanding.
(C) This Debenture no representation, warranty or covenant in any Transaction Document shall be convertible into shares of Common Stock at the option deemed to be breached or violated solely as a result of the Holderfact that the Surviving Entity in any Conversion may be disregarded as a separate entity for state, in whole local or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Datefederal income tax purposes." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 3 contracts
Sources: Omnibus Amendment (Domus Holdings Corp), Omnibus Amendment (NRT Settlement Services of Missouri LLC), Omnibus Amendment (Realogy Corp)
Conversion. (A) This Debenture The holders of the Series C Preferred Stock shall have conversion rights as follows:
A. Each share of Series C Preferred Stock shall be convertible at the direction of, and by notice to the Corporation from, (i) the holder thereof or (ii) the holders of a majority of the outstanding shares of Series C Preferred Stock, at any time, at the office of the Corporation or any transfer agent for such Series, into one thousand (1,000) fully paid and nonassessable shares of Common Stock at the option of the Holder, in whole or in part at any time and subject (x) to adjustment from time to timetime as provided below (as so adjusted, after the Original Issue Date "conversion ratio") and (subject y) (prior to the consummation of the Recapitalization) to limitations on conversion set forth in Section 4(a)(ii) hereof). The resulting from the available number of shares of Common Stock issuable which may be reserved for issuance upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Dateconversion, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash any conversion pursuant to the terms hereof, subsection clause (ii) shall not be used in the calculation above of less than all of the outstanding shares of Series C Preferred Stock shall be on a pro rata basis amongst all holders of Series C Preferred Stock. After consummation of the Recapitalization, the number "1,000" in this paragraph shall be "1", subject to adjustment as provided in paragraph VIII.G.
B. If a holder of Series C Preferred Stock gives notice (an "Optional Conversion Notice") of conversion under paragraph A above, such holder shall surrender with such Optional Conversion Notice the duly endorsed certificate or certificates for the Series C Preferred Stock being converted, at the office of the Corporation or of any transfer agent for such Series, and shall state therein the name or names in which the certificate or certificates for shares of Common Stock issuable upon are to be issued. If the holders of a conversion hereunder.
(B) Notwithstanding anything to majority of the contrary contained herein, if on any Conversion Date:
(1) the number of outstanding shares of Common Series C Preferred Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares give notice of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), thenparagraph A above, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days Corporation shall notify all other record holders of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Series C Preferred Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Mandatory Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount Following receipt of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Mandatory Conversion Notice, once given, the holders of Series C Preferred Stock shall be irrevocable. Conversions hereunder shall have surrender the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute certificate or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.certificates therefor duly
Appears in 3 contracts
Sources: Preferred Stock Purchase Agreement (Capital Z Financial Services Fund Ii Lp), Preferred Stock Purchase Agreement (Capital Z Financial Services Fund Ii Lp), Preferred Stock Purchase Agreement (Capital Z Financial Services Fund Ii Lp)
Conversion. (Aa) This Debenture After the Issue Date, the Holder shall be convertible into shares of Common Stock at have the option of right (the Holder"CONVERSION RIGHT"), in whole or in part at any time and from time to time, after on the Original Issue Date (subject to the limitations on conversion terms set forth in this Section 4(a)(ii3, to convert the principal amount of this Note and the accrued but unpaid interest thereon into Common Stock on the terms and conditions hereinafter set forth.
(b) hereof)Holder may exercise such Conversion Right by delivery to the Company of a written notice of conversion not less than three (3) Business Days prior to the date upon which such conversion shall occur. The date upon which such conversion shall occur is the conversion date ("CONVERSION DATE").
(c) Notwithstanding anything contained herein to the contrary, pursuant to the terms of this Note, the Holder shall not be entitled to convert this Note into that number of shares of Common Stock issuable upon a conversion hereunder shall which would be determined by adding in excess of the sum of (i) the quotient obtained number of shares of Common Stock actually owned by dividing (x) the outstanding principal amount of this Debenture to be converted Holder and (y) the Conversion Price (as defined herein), its affiliates and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a the conversion hereunderof this Note held by such Holder and its affiliates with respect to which the determination of this proviso is being made which would result in beneficial ownership by the Holder and its affiliates of more than 9.99% of the outstanding shares of Common Stock of the Company. For the purposes of the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and Regulation 13d-3 thereunder.
(Bd) Notwithstanding anything In the event that the Holder elects to convert all or any portion of this Note into Common Stock, the Holder shall give written notice of such election by delivering to the contrary contained hereinCompany an executed and completed notice of conversion (the "NOTICE OF CONVERSION"), if on any such Notice of Conversion shall provide a breakdown in reasonable detail of the Principal Amount, accrued interest and fees being converted. On each Conversion Date (as hereinafter defined) and in accordance with the Notice of Conversion, the Holder shall make the appropriate reduction to the Principal Amount, accrued interest and fees as entered in its records and shall provide written notice thereof to the Company within two (2) Business Days after the Conversion Date:. Each date on which a Notice of Conversion is delivered or telecopied to the Company in accordance with the provisions hereof shall be deemed, for all purposes of this Note, to be the Conversion Date. Pursuant to the terms of the Notice of Conversion, the Company will issue instructions to the transfer agent (together with such other documents as the transfer agent may request) within two (2) Business Days of the date of the delivery to Company of the Notice of Conversion. The Company shall use its best efforts to cause its transfer agent to transmit the certificates representing the Common Stock issuable upon full or partial conversion of this Note to any address or depositary directed by the Holder within five (5) Business Days after receipt by the Company of the Notice of Conversion.
(1e) the The number of shares of Common Stock at to be issued upon any conversion of this Note (the time authorized"CONVERSION SHARES") shall be determined by dividing that portion of the principal, unissued interest and unreserved for all purposesfees to be converted, or held as treasury stockif any, is insufficient to pay interest hereunder in shares of Common Stock;
by forty cents (2) the Underlying Shares issuable for such conversion (including any interest payable in shares$0.40) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6"CONVERSION PRICE");
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(Cf) This Debenture shall The Conversion Price and number and kind of shares or other securities to be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and issued upon conversion is subject to adjustment from time to timetime upon the occurrence of certain events, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.follows:
Appears in 3 contracts
Sources: Securities Agreement (Utix Group Inc), Securities Agreement (Utix Group Inc), Securities Agreement (Utix Group Inc)
Conversion. (A1) This Debenture Provided that there are no unresolved claims for losses incurred by Parent pursuant to the indemnification provisions of Section 8 of the Purchase Agreement, the holder of this Instrument is entitled at any time after August 30, 2003 and from time to time before the close of business on the Maturity Date, to convert the principal amount of this Instrument (or any portion of the principal amount hereof that is an integral multiple of $1,000), into fully paid and nonassessable Common Stock (calculated as to each conversion to the nearest 1/100 of a share) of the Parent at the rate of 62.50 shares of Common Stock for each $1,000 principal amount of Instrument (or at the then current adjusted rate if an adjustment has been made as provided below) (the "Conversion Rate") by surrender of this Instrument, duly endorsed or assigned to the Company or in blank to the Company at the Designated Office, accompanied by written notice to the Company, in the form attached hereto, that the holder hereof elects to convert this Instrument (or if less than the entire principal amount hereof is to be converted, specifying the portion hereof to be converted). If the holder elects to exercise its conversion right hereunder, then the Company shall, within five (5) Business Days after receipt of written notice of such election, deliver or cause to be delivered to the holder at the address specified by the holder to the Company in the conversion notice a certificate or certificates for the Common Stock issued upon such conversion and any replacement Instrument issued as a result of any partial conversion of this Instrument.
(2) Upon surrender of this Instrument for conversion, the holder will be entitled to payment in cash within three (3) Business Days thereafter of the interest accrued on the principal amount of this Instrument then being converted and unpaid to such date of conversion (a "Company Conversion Date").
(3) Subject to Section 2(b) below, no payment or adjustment is to be made on conversion for dividends on the Common Stock issued on conversion hereof. No fractions of shares or scrip representing fractions of shares will be issued on conversion, but instead of any fractional interest, the Company shall be convertible pay a cash adjustment, computed on the basis of the Closing Price of the Common Stock on the Trading Day immediately prior to the Company Conversion Date, or, at its option, the Company shall round up to the next higher whole share.
(4) In the event that the conversion of this Instrument into shares of Common Stock at would require the option Parent and the holder of this Instrument to file notification and report forms with the Federal Trade Commission (the "FTC") and Antitrust Division of the Holder, in whole or in part at any time and from time to time, after Department of Justice (the Original Issue Date (subject "DOJ") pursuant to the limitations on conversion set forth in Section 4(a)(ii) hereofHart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "▇▇▇ ▇▇▇"). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of , ▇▇▇▇ (i) the quotient obtained by dividing (x) the outstanding principal amount holder of this Debenture Instrument shall, and the Company shall cause the Parent to be converted use best efforts to complete all applicable filings and (y) provide all necessary information as required pursuant to the Conversion Price (as defined herein)HSR Act, and (ii) the amount equal to (I) the product of (x) the outstanding principal amount holder of this Debenture Instrument and the Company agree that such conversion of this Instrument into shares of Common Stock shall not occur until such time as the required filings are made pursuant to the HSR Act and the required waiting period(s) have expired or early termination of the required waiting period(s) has been granted by the FTC or the DOJ. The Parent and the holder will each bear their own respective filing fees for any filings made pursuant to the HSR Act, and the Company shall cause the Parent to pay any such fees to be converted borne by it. The Company shall, if the holder so elects, and within the time period prescribed in Section 2(a)(1) hereof, deliver or cause to be delivered the Common Stock issuable upon conversion of this Instrument to any third party or parties designated by the holder, subject to compliance with Sections 2(f), 8(d) and 8(f) hereof.
(yb) the product of The Conversion Rate will be subject to adjustments from time to time as follows:
(1) In case the quotient obtained Parent shall pay or make a dividend or other distribution on Common Stock of the Parent payable in Common Stock, the Conversion Rate in effect at the opening of business on the day following the Determination Date (as hereinafter defined) for such dividend or other distribution shall be increased by dividing .12 such Conversion Rate by 360 and (2) a fraction of which the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company numerator shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock outstanding at the close of business on such Determination Date and the denominator shall be the sum of such number of shares of Common Stock and the total number of shares of Common Stock constituting such dividend or other distribution, such increase to become effective immediately after the opening of business on the day following such Determination Date. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include Common Stock held in the treasury of the Parent but shall include Common Stock issuable upon a conversion hereunderin respect of scrip certificates issued in lieu of fractions of Common Stock. The Parent will not pay any dividend or make any distribution on Common Stock held in the treasury of the Parent.
(B2) Notwithstanding anything In case the Parent shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (7) of this Section 2(b)) of the Common Stock on the Determination Date for such distribution, the Conversion Rate in effect at the opening of business on the day following such Determination Date shall be increased by dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such Determination Date plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on such Determination Date plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following such Determination Date. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include Common Stock held in the treasury of the Parent but shall include Common Stock issuable in respect of scrip certificates issued in lieu of fractions of Common Stock. The Parent will not issue any rights, options or warrants in respect of Common Stock held in the treasury of the Parent. Upon the expiration of any right, option or warrant to purchase Common Stock the issuance of which resulted in an adjustment to the contrary contained hereinConversion Rate pursuant to this paragraph (2) of Section 2(b), if any such right, option or warrant shall expire and shall not have been exercised, the Conversion Rate shall immediately upon such expiration be recomputed to the Conversion Rate which would have been in effect had the adjustment of the Conversion Rate made upon the issuance of such right, option or warrant been made on any Conversion Date:the basis of offering for subscription or purchase only that number of shares of Common Stock actually purchased upon the exercise of such right, option and warrant actually exercised.
(3) In case outstanding Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Parent shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section 2(b), (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section 2(b) and (iv) any merger or consolidation to which Section 2(h) applies (the "Distributed Property"), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the Determination Date for such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (7) of this Section 2(b)) of the Common Stock on such Determination Date less the then fair market value (as determined in good faith by the Board of Directors of the Parent in accordance with the provisions of this paragraph 4 of Section 2(b)) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following such Determination Date; provided, however, that if the Distributed Property consists of shares of capital stock of a Subsidiary, the Parent may, at its option and in lieu of the foregoing adjustment to the Conversion Rate, elect to make adequate provision so that the holder of this Instrument shall have the right to receive upon conversion the amount of such shares of capital stock that such holder of this Instrument would have received if such holder of this Instrument had converted such Instrument on the record date. If the Board of Directors determines the fair market value of any distribution for purposes of this paragraph (4) by reference to the actual or when issued trading market for any securities constituting such distribution, it must in doing so consider the prices in such market over the same period used in computing the current market price per share pursuant to paragraph (7) of this Section 2(b). In the event the Parent implements a stockholder's rights plan (a "Rights Plan"), upon conversion of this Instrument into Common Stock, to the extent that the Rights Plan is still in effect upon such conversion, the holder of this Instrument will receive, in addition to the Common Stock, the rights described therein (whether or not the rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in the Rights Plan. Any distribution of rights or warrants pursuant to the Rights Plan in compliance with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 2(b). Rights or warrants distributed by the Parent to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Parent's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 2(b) (and no adjustment to the Conversion Rate under this Section 2(b) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 2(b). If any such right or warrant, including any such existing rights or warrants distributed prior to the original issue date of this Instrument, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this section was made, (x) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (y) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(5) In case the Parent shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of Section 2(b)) in an aggregate amount that, combined with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the twelve (12) months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) of Section 2(b) has been made and (II) the aggregate of any cash plus the fair market value (as determined by the Parent's Board of Directors, whose determination shall be conclusive and described in a board resolution) of consideration payable in respect of any tender offer by the Parent or any of its subsidiaries for all or any portion of the Common Stock concluded within the twelve (12) months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of Section 2(b) has been made (the "combined cash and tender amount"), exceeds ten percent (10%) of the product of the current market price per share of the Common Stock (determined as provided in paragraph (7) of this Section 2(b)) on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the current market price per share of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over ten percent (10%) of such aggregate current market price divided by (y) the number of shares of Common Stock at the time authorized, unissued outstanding on such date for determination and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2ii) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.denominator
Appears in 2 contracts
Sources: Convertible Note Agreement (Tekelec), Convertible Note Agreement (Catapult Communications Corp)
Conversion. (ANotwithstanding any covenants in this Agreement requiring Cartus, CFC or ARSC to maintain its “corporate existence”, such entity may elect to convert their status from that of a Delaware corporation to that of a Delaware limited liability company, either by filing a certificate of conversion with the Delaware Secretary of State or by merging with and into a newly formed Delaware limited liability company(such conversion or merger, as applicable, being herein called a “Conversion”) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(iiconditions that:
(a) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount Person formed by such Conversion (any such Person, the “Surviving Entity”) is an entity organized and existing under the laws of this Debenture the United States of America or any State thereof, (y) such Surviving Entity expressly assumes, by an agreement in form and substance satisfactory to be converted the applicable transferee and its assignees, performance of every covenant and obligation of such Person under the Transaction Documents to which such Person is a party and (z) such Surviving Entity delivers to the other parties to the Fifth Omnibus Amendment hereto dated as of April 10, 2007 (such parties, the “Amendment Parties”) an opinion of counsel that such Surviving Entity is duly organized and validly existing under the laws of its organization, has duly executed and delivered such supplemental agreement, and such supplemental agreement is a valid and binding obligation of such Surviving Entity, enforceable against such Surviving Entity in accordance with its terms (subject to customary exceptions relating to bankruptcy and equitable principles) and covering such other matters as the Amendment Parties may reasonably request;
(b) all actions necessary to maintain the perfection of the security interests or ownership interests created by such Person under the Transaction Documents to which such Person is a party in connection with such Conversion shall have been taken, as evidenced by an opinion of counsel reasonably satisfactory to the Amendment Parties;
(c) so long as such Person is the Servicer, no Servicer Default or Unmatured Servicer Default is then occurring or would result from such Conversion;
(d) in the case of a Conversion of CFC or ARSC, (x) the organizational documents of any Surviving Entity with respect to CFC or ARSC shall contain limitations on its business activities and requirements for independent directors or managers substantially equivalent to those set forth in its current organizational documents, and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Sutcliffe shall have timely elected to pay the interest due on a Conversion Date in cash pursuant delivered an opinion of counsel reasonably satisfactory to the terms hereofAmendment Parties that such Conversion will not, subsection in and of itself, alter the conclusions set forth in its opinions previously issued in connection with the Transaction Documents with respect to true sale matters, substantive consolidation matters and bankruptcy issues relating to “home sale proceeds” (iito the extent such opinions relate to such Person); and
(e) each Amendment Party shall not have received such other documents as such Amendment Party may reasonably request. In connection with any such Conversion and the resulting change in name of such entity, Cartus, CFC and/or ARSC, as applicable, shall be used required to comply with the name change covenants in the calculation Transaction Documents, except that to the extent 30 days prior written notice of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything name change is required, such notice period shall be reduced to five Business Days. From and after any such Conversion effected in compliance with the contrary contained hereinabove conditions, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) all references in the outstanding principal amount of the Debentures Transaction Documents to any Person which has altered its corporate structure to become a limited liability company shall be deemed to be converted on references to the Surviving Entity as successor to such Conversion Date and Person, (b) all representations, warranties and covenants in the product Transaction Documents which state that any of Cartus, CFC or ARSC is or is required to be a corporation shall be deemed to permit and require the Surviving Entity to be a limited liability company, (xc) all references to such Person’s certificate of incorporation, other organizational documents, capital stock, corporate action or other matters relating to its corporate form will be deemed to be references to the quotient obtained by dividing .12 by 360 organizational documents and analogous matters relating to limited liability companies, (d) all references to such Person’s directors or independent directors will be deemed to be references to the Surviving Entity’s directors, independent directors, managers or independent managers, as the case may be and (ye) the number of days for which such principal amount was outstanding.
(C) This Debenture no representation, warranty or covenant in any Transaction Document shall be convertible into shares of Common Stock at the option deemed to be breached or violated solely as a result of the Holderfact that the Surviving Entity in any Conversion may be disregarded as a separate entity for state, in whole local or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Datefederal income tax purposes." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Omnibus Amendment (NRT Settlement Services of Missouri LLC), Omnibus Amendment (Realogy Corp)
Conversion. (a) (i) Conversion at Option of Holder.
(A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (as defined in Section 4) (subject to the limitations on conversion set forth in Section 4(a)(ii3(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) equals the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and by (y) the Conversion Price (as defined hereinin Section 3(c)(i), and ). The Obligor shall deliver Common Stock certificates to the Holder prior to the Fifth (ii5th) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Trading Day after a Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
: (1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay principal and interest hereunder in shares of Common Stock;
; (2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
; (43) the Company Obligor has failed to timely satisfy its conversion obligations hereunderconversion; or
or (54) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(iiSection 3(a)(ii), then, at the Company may not pay interest option of the Holder, the Obligor, in kind and must pay interest in cash by deliveringlieu of delivering shares of Common Stock pursuant to Section 3(a)(i)(A), shall deliver, within three (3) Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted plus any interest due therein divided by the Conversion Price and multiplied by the highest closing price of the stock from date of the conversion notice till the date that such cash payment is made. Further, if the Obligor shall not have delivered any cash due in respect of conversion of this Debenture or as payment of interest thereon by the fifth (5th) Trading Day after the Conversion Date, the Holder may, by notice to the Obligor, require the Obligor to issue shares of Common Stock pursuant to Section 3(c), except that for such purpose the Conversion Price applicable thereto shall be the lesser of the Conversion Price on such the Conversion Date and (b) the product Conversion Price on the date of (x) such Holder demand. Any such shares will be subject to the quotient obtained by dividing .12 by 360 and (y) the number provisions of days for which such principal amount was outstandingthis Section.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company Obligor a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company Obligor in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company Obligor shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Debenture Agreement (Innova Holdings), Secured Convertible Debenture (In Veritas Medical Diagnostics, Inc.)
Conversion. (A) This Debenture shall be convertible The mode of carrying the Merger into effect and the manner and basis of converting the shares of ▇▇▇▇▇▇▇ into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof)IS4B are as follows:
9.1. The aggregate number of shares of ▇▇▇▇▇▇▇ Common Stock issuable upon issued and outstanding on the Merger Date shall, by virtue of the Merger and without any action on the part of the holders thereof, be converted into an aggregate of 100,000 shares of IS4B Common Stock (the "IS4B shares") adjusted by any increase for fractional shares and reduced by any Dissenting Shares (defined below). The IS4B Common Stock to be issued hereunder ("the IS4B Shares") will be issued pursuant to Section 4(2) of the Securities Act of 1933 and/or Rule 506 of the General Rules and Regulations of the Securities and Exchange Commission, will be restricted as to transferability pursuant to Rule 144 thereof, and will bear substantially the following legend: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "ACT") AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF IS4B." IS4B agrees to register the re-offer and resale by the holders of the IS4B Shares pursuant to a conversion hereunder registration statement filed by IS4B with the Securities and Exchange Commission in connection with any offering of the IS4B Common Stock (excluding registration statements filed on Forms S-4 or S-8)
9.2. Upon completion of the Merger, there shall be determined by adding the sum 14,512,071 shares of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted IS4B Common Stock issued and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided subject to such adjustments, held as follows: 100,000 common shares held by (II) the Conversion Price former shareholders of ▇▇▇▇▇▇▇ and 14,412,071 common shares held by the other shareholders of IS4B.
9.3. All outstanding Common or Preferred Stock of ▇▇▇▇▇▇▇ and all warrants, options or other rights to its Common or Preferred Stock shall be retired and canceled as of the Merger Date.
9.4. Each share of ▇▇▇▇▇▇▇ Common Stock that is owned by ▇▇▇▇▇▇▇ as treasury stock shall, by virtue of the Merger and without any action on the Conversion Datepart of ▇▇▇▇▇▇▇, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation retired and canceled as of the Merger Date.
9.5. Each certificate evidencing ownership of shares of IS4B Common Stock issued and outstanding on the Merger Date or held by IS4B in its treasury shall continue to evidence ownership of the same number of shares of IS4B Common Stock.
9.6. IS4B Common Stock issuable upon shall be issued to the holders of ▇▇▇▇▇▇▇ Common Stock in exchange for their shares on a conversion hereunderpro rata basis in accordance with each holder's relative ownership of the ▇▇▇▇▇▇▇ Common Stock that is being exchanged.
(B) Notwithstanding anything 9.7. The shares of IS4B Common Stock to be issued in exchange for ▇▇▇▇▇▇▇ Common Stock hereunder shall be proportionately reduced by any shares owned by ▇▇▇▇▇▇▇ shareholders who shall have timely objected to the contrary contained herein, if on any Conversion Date:
Merger (1the "Dissenting Shares") in accordance with the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount provisions of the Debentures to be converted on such Conversion Date and (b) the product General Corporation Law of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingDelaware, as provided therein.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Merger Agreement (Chauvin Enterprises Inc), Merger Agreement (Internet Solutions for Business Inc)
Conversion. (Aa) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion Except as set forth in Section 4(a)(ii3.16(a) hereof). The of the Loan Agreement, this Note may be converted into that number of shares of Common Stock issuable (rounded down to the nearest whole share) determined by dividing the Principal Amount (excluding interest) of this Note by $0.15 (the “Conversion Price”), subject to adjustment below, at any time upon the election of the Holder hereof as described in and subject to the conditions set forth in Section 1(c) of the Schedule to the Loan Agreement (the “Holder Conversion”) and upon the election of Maker as described in and subject to the conditions set forth in Section 1(e) of the Schedule to the Loan Agreement (the “Holder Conversion”), all in accordance with and subject to the terms and conditions of the Loan Agreement (each a conversion hereunder “Conversion Event”).
(b) As soon as practicable after the occurrence of a Conversion Event, and in any event within the time periods specified in Section 1(c) of the Schedule to the Loan Agreement, Maker at its expense will cause to be issued in the name of and delivered to Holder, a certificate or certificates for the number of shares of Conversion Stock to which Holder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount entitled on such conversion. No fractional Conversion Stock shall be issued on conversion of this Debenture to be converted and (y) Note. If on conversion of this Note a fraction of a share of Conversion Stock results, Maker will pay the cash value of that fractional share based on the Conversion Price then in effect.
(as defined herein), c) From and (ii) after the amount equal to (I) the product occurrence of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereofEvent, subsection (ii) Maker shall not be used in the calculation reserve and keep available out of the its authorized but unissued Common Stock such number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to timetime be sufficient to effect conversion of this Note and all other Notes. Maker will not, after by amendment of its Certificate of Incorporation or through any reorganization, recapitalization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, dividend or other distribution of cash or property, or any other voluntary action, avoid or seek to avoid the Original Issue Date (subject observance or performance of any of the terms to the limitations on conversion set forth be observed or performed hereunder by Maker, but will at all times in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially good faith assist in the form attached hereto carrying out of all the provisions hereof, and in the taking of all such action as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not may be required to physically surrender this Debenture to the Company necessary or appropriate in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have protect the effect conversion rights of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest erroras set forth herein against impairment.
Appears in 2 contracts
Sources: Loan and Security Agreement (Healthcare Corp of America), Loan and Security Agreement (Healthcare Corp of America)
Conversion. (Aa) This Debenture Upon the conversion of a Note or any part thereof, the Company shall, at its own sole cost and expense, take all action, including obtaining and delivering an opinion of counsel, to assure that the Company's transfer agent shall issue the appropriate stock certificates, in the name of Subscriber (or its permitted assignee) or such other Persons as designated by Subscriber and in such denominations to be convertible into shares of Common Stock specified at the option time of the Holderconversion, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of representing the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything such conversion. The Company represents and warrants that no instructions other than these instructions have been or shall be given to the contrary contained herein, if on any Conversion Date:
(1) transfer agent for the number of shares of Company's Common Stock at and that the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of certificates representing such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, shall contain no legend other than the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion legend set forth in Section 4(a)(ii4(h) hereof). The Holder If and when a Subscriber sells the Conversion Shares, assuming (i) a registration statement including such Conversion Shares for registration has been filed with the Commission and is effective, and the prospectus, as supplemented or amended, contained therein is current and (ii) the Company or its agent confirms in writing to the transfer agent that the Company has complied with the prospectus delivery requirements, the Company shall effect conversions reissue the Conversion Shares without restrictive legend and such Conversion Shares shall be free-trading and freely transferable. In the event that the Conversion Shares are sold in a manner that complies with an exemption from registration, the Company shall promptly instruct its counsel to issue to the transfer agent an opinion permitting removal of the legend, if such sale is eligible and intended to be made in conformity with Rule 144(i)(2) of the 1933 Act, or for 90 days if pursuant to the other provisions of Rule 144 of the 1933 Act, provided that Subscriber delivers all reasonably requested representations in support of such opinion.
(b) Each Subscriber shall give notice of its decision to exercise its right to convert its Note, interest, or part thereof by faxing or otherwise delivering a completed Notice of Conversion (a form of which is annexed as Exhibit A to the Note) to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount via confirmed facsimile transmission or otherwise pursuant to Section 13(a) of this Debenture and all accrued and unpaid interest thereon subsequent Agreement. Subscriber shall not be required to surrender the conversion at issueNote until the Note has been fully converted or satisfied. The Each date on which a Notice of Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture faxed to the Company in order to effect conversions. Subject to Section 4(b)accordance with the provisions hereof by 5 PM Eastern Time (“ET”) (or if received by the Company after 5 PM ET, each Conversion Notice, once given, then the next business day) shall be irrevocable. Conversions hereunder deemed a “Conversion Date.” The Company shall have itself or cause the effect of lowering Company’s transfer agent to transmit the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in Company’s Common Stock certificates representing the Conversion Notice. The Holder and Shares issuable upon conversion of the Company shall maintain records showing Note to Subscriber via express courier for receipt by Subscriber within four (4) business days after the principal amount converted and Conversion Date (such fourth day being the date of such conversions”Delivery Date”). In the event the Conversion Shares are electronically transferable, then delivery of any dispute or discrepancythe Conversion Shares must be made by electronic transfer, provided request for such electronic transfer has been made by the Subscriber. A Note representing the balance of the Note not so converted shall be provided by the Company to Subscriber if requested by Subscriber, provided Subscriber delivers the original Note to the Company.
(c) The Company understands that a delay in the delivery of the Conversion Shares in the form required pursuant to Section 7.1 hereof could result in economic loss to the Subscriber. As compensation to Subscriber for such loss, the records Company agrees to pay (as liquidated damages and not as a penalty) to Subscriber for late issuance of Conversion Shares in the form required pursuant to Section 7.1 hereof upon Conversion of the Holder Note, the amount of $25 per business day after the Delivery Date for each $10,000 of Note principal amount and interest (and proportionately for other amounts) being converted of the corresponding Conversion Shares which are not timely delivered provided that the Subscriber has provided all the information reasonably necessary (as reasonably determined by the Company’s transfer agent and the opinion issuing counsel) to receive timely delivery of such Conversion Shares. The Company shall pay any payments incurred under this Section upon demand. Furthermore, in addition to any other remedies which may be available to the Subscriber, in the event that the Company fails for any reason to effect delivery of the Conversion Shares within seven (7) business days after the Delivery Date, Subscriber shall be controlling entitled to revoke all or part of the relevant Notice of Conversion by delivery of a notice to such effect to the Company whereupon the Company and determinative Subscriber shall each be restored to their respective positions immediately prior to the delivery of such notice, except that the damages payable in connection with the absence Company’s default shall be payable through the date notice of manifest errorrevocation or rescission is given to the Company.
Appears in 2 contracts
Sources: Subscription Agreement (Mimvi, Inc.), Subscription Agreement (Medlink International, Inc.)
Conversion. (Aa) This Debenture If a Fundamental Change occurs, each Holder of a Note shall be convertible into shares have the right, at such Holder’s option, to convert all or any portion of Common Stock at the option of the Holder, in whole or in part such Note by giving a notice at any time and from time on or before the 4th Business Day preceding the Fundamental Change Repurchase Date (the “Conversion Notice”) relating to such Fundamental Change (the “Fundamental Change Conversion Cut-off Day”); provided that a Holder that, pursuant to Section 8.01, has exercised its Repurchase Option in connection with such Fundamental Change shall not be entitled to exercise this conversion right unless it irrevocably withdraws its election to exercise such Repurchase Option pursuant to Section 8.02 or the following proviso applies; provided further, that if a Mandatory Conversion Election has been made pursuant to Section 9.02(b), then any Holder that has not exercised this conversion right by the Fundamental Change Conversion Cut-off Day shall be deemed to have irrevocably exercised such conversion right as of 5:00 pm, New York time, after on the Original Issue Date Fundamental Change Conversion Cut-off Day and, if such Holder has previously elected to exercise its Repurchase Option pursuant to Section 8.01, then such Repurchase Option election shall as of such time be deemed automatically withdrawn, void and of no further force and effect.
(subject to b) Without limiting the limitations on conversion set forth in rights provided under Section 4(a)(ii) hereof12.01(a). The number of shares of Common Stock issuable upon , if a conversion hereunder shall be determined by adding the sum of Scenario 1 Final Equity Distribution or a Scenario 2 Final Equity Distribution occurs (i) each Holder of a Series 1 Note shall have the quotient obtained right, at such Holder’s option, to convert all or any portion of such Note by dividing (x) giving a Conversion Notice at any time during the outstanding principal amount of this Debenture to be converted and (y) the Final Conversion Price (as defined herein)Period, and (ii) each Holder of a Series 2 Note shall have the amount equal right, at such Holder’s option, to convert all or any portion of such Note by giving a Conversion Notice at any time during the Final Conversion Period.
(Ic) Notes converted under Section 12.01(a) shall cease to accrue interest on the product 30th day preceding the occurrence of (xthe relevant Fundamental Change. Notes converted under Section 12.01(b) shall cease to accrue interest on the outstanding first day of the Final Conversion Period. The accrued and unpaid interest on any Note being converted shall be added to the principal amount of this Debenture to be converted and such Note being converted.
(yd) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days For each Note properly tendered for which such principal amount was outstandingconversion hereunder, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant issue and deliver to the terms hereof, subsection (ii) shall not be used in the calculation of the converting Holder a number of shares equal to the Note Conversion Amount divided by the applicable Conversion Price (plus cash in lieu of fractional shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number in accordance with Section 12.03 and adjusted pro rata for amounts being converted in integral multiples of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof$1.00). The Holder Company shall effect conversions by delivering cause such issuance and delivery of shares issuable upon conversion to be made promptly and in no event later than fifteen (15) days following the Company a completed notice substantially in the form attached hereto as Exhibit A (a "applicable Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture Calculation Date; provided that such issuance and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, delivery shall be irrevocable. Conversions hereunder shall have contingent on the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.Holder’s compliance with Section 12.01
Appears in 2 contracts
Sources: Supplemental Indenture, Indenture
Conversion. (A1) This Debenture shall be convertible into shares Subject to receiving all required regulatory approvals, the Holder may, at its election, upon surrender (either in person, by mail (postage prepaid) or other means of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(iidelivery) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company along with a completed notice substantially of conversion (the “Conversion Notice”) in the form attached hereto as Exhibit A Schedule “B” at the principal office of the Company in the City of Vancouver, British Columbia at any time prior 5:00 p.m. (Vancouver Time) on the last Business Day immediately preceding the Maturity Date (“Holder Conversion”), convert all or a "portion of the then outstanding Principal Sum (including any payment of interest thereon in accordance with Section 3.02), from time to time on or prior to the Maturity Date, at the Conversion Notice")Price. The delivery of the Conversion Notice shall set forth duly executed by the remaining principal amount Holder and the surrender of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have deemed to constitute a contract between the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing whereby (i) the principal amount converted and Holder subscribes for the date number of such conversions. In the event of any dispute or discrepancy, the records of Common Shares which the Holder shall be controlling entitled to receive upon such Holder Conversion, (ii) the Holder releases the Company from all liability thereon or from all liability with respect to the portion of the Principal Sum converted, as the case may be, and determinative (iii) the Company agrees that the surrender of this Debenture for Holder Conversion constitutes full payment of the subscription price for the Common Shares issuable on such Holder Conversion.
(2) As promptly as possible after receipt of the Conversion Notice and this Debenture, but subject to Section 4.03 hereto, the Company shall issue or cause to be issued and deliver or cause to be delivered to the Holder a certificate in the absence name of manifest errorthe Holder for the number of Common Shares deliverable upon the Holder Conversion. Upon completion of the conversion transaction, the rights of the Holder to receive, in respect of the amount hereof so converted, the Principal Sum shall cease and the Holder shall be deemed to have become on such date the holder of record of such Common Shares represented thereby.
(3) In the event that only a portion of the Principal Sum is subject to Holder Conversion, the Holder will be entitled to receive a replacement Debenture representing the Principal Sum not subject to Holder Conversion on the same terms and provisions contained herein.
Appears in 2 contracts
Sources: Omnibus Debt Restructuring Agreement, Omnibus Debt Restructuring Agreement
Conversion. (A) This Debenture shall be convertible into shares of Common Stock at In the option of the Holder, in whole or in part at any time and from time event that this Note converts to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price “Secured Convertible Demand Note” on the Conversion Date, providedthen commencing on the Maturity Date, the Borrower, upon demand by the Holder (the “Conversion Option”), shall be required to exchange and convert the Note into fully paid and non-assessable shares of the Borrower’s equity securities (the “Equity Securities”, it being understood that such Equity Securities may be in the form of membership interests if the Company remains a limited liability company at the time of conversion of this Note or stock, if the Company has converted to a corporation at the time of the conversion of this Note) as follows:
(a) Concurrently with the closing of the next round of public or private financing secured by the Borrower that closes before June 30, 2009 (the “Financing Event”), the class of Equity Securities to be issued to Holder shall be of the same class offered as part of the Financing Event, and such Equity Securities shall be issued with accompanying rights and privileges materially similar to those offered as part of the Financing Event (the “Tag Along Conversion Stock”; for convenience, the use of this term assumes that the Company is a corporation at the time of conversion, it being understood that if the Company Equity Securities are converted into membership interests at the time of conversion, the term will refer to membership interests acquired in such conversion). Concurrently with a Financing Event, at the election of the Holder, as an alternative to its Demand Right set forth in Section 1.2(b), all amounts due under the Note shall have timely elected convert to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Tag Along Conversion Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to as determined through whichever of the contrary contained herein, if on any Conversion Date:
(1) following methods/formulas set forth below results in the highest number of shares of Common Tag Along Conversion Stock issued by the Borrower:
A. total outstanding Principal ▇▇▇▇▇▇ and accrued interest due (and failed payment fee(s) if incurred) / ($31,600,000 / total outstanding capital stock of Borrower on an as-converted basis on date of conversion); or
B. total outstanding Principal ▇▇▇▇▇▇ and accrued interest (and failed payment fee(s) if incurred) due X the price per share paid (ignoring the effect of any stock splits or other mechanisms adopted at the time authorized, unissued and unreserved for all purposes, of conversion to arrive at a per share value that do not change the economic substance or held as treasury stock, is insufficient to pay interest hereunder value of the converted Equity Securities) by the investor(s) participating in shares of Common Stock;the Financing Event.
(2b) In the Underlying Shares issuable for such conversion event that no Financing Event occurs before June 30, 2009 and the Holder has not exercised its Conversion Option under Section 2.1(b)(ii), then on June 30, 2009 (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6“Final Conversion Date”);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company , provided Holder has failed to timely satisfy its conversion obligations hereunder; or
given five (5) business days written notice of its desire to exercise the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), thenConversion Option, the Company may not pay interest in kind class of Equity Securities to be issued to Holder shall be common stock or membership interests, as applicable, and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an the amount in cash equal to the product of (a) the outstanding principal amount be issued shall be determined though utilization of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion formula set forth in Section 4(a)(ii3.1(a)(A) hereof)above. The If Holder elects not to exercise its Conversion Option in accordance with Section 2.1(b)(ii) or Section 3.1, the Note shall effect conversions by delivering to become due and payable on the Company a completed notice substantially in Final Conversion Date. ▇▇▇▇▇▇▇▇ understands and agrees the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall Option set forth the remaining principal amount of this Debenture herein is provided to Holder in addition to any other right or remedy set forth herein, including but not limited to its Demand Right, and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which no time shall such Conversion Option be deemed a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records automatic obligation of the Holder shall be controlling and determinative in the absence of manifest errorHolder.
Appears in 2 contracts
Sources: Secured Term Note (SouthPeak Interactive CORP), Secured Term Note (SouthPeak Interactive CORP)
Conversion. (i) Subject to the provisions of this paragraph 8, (A) This Debenture shall be convertible into a holder of shares of Common Series A Preferred Stock shall have the right, on or after the date which is 30 days after the First Call Date (or, in the event that a Change of Control has occurred, at the option any time), at such holder's option, to convert any or all outstanding shares (and fractional shares) of the HolderSeries A Preferred Stock held by such holder, in whole or in part part, into fully paid and non-assessable shares of Common Stock.
(ii) The number of shares of Common Stock deliverable upon conversion of a share of Series A Preferred Stock (including the Additional Shares), subject to adjustment as hereinafter provided, shall be 1.0 (the CONVERSION RATIO). In the event that at the time of conversion of a share of Series A Preferred Stock there are accrued and unpaid dividends on such share with respect to which Additional Shares have not been issued (including, with respect to any time interim period since the last Dividend Payment Date, the product of the full dividend payable for the current Dividend Period ending on the next Dividend Payment Date, multiplied by a fraction, the numerator of which is the number of days that have elapsed since the last Dividend Payment Date and from time the denominator of which is 360), then, upon such conversion, the holder thereof shall be entitled to timereceive such number of shares of Common Stock (in addition to the shares of Common Stock otherwise issuable upon the conversion of any such shares of Series A Preferred Stock and Additional Shares converted therewith) as would have been issued in accordance with the preceding sentence if Additional Shares had been issued in respect of such accrued and unpaid dividends and had been converted simultaneously therewith.
(i) In connection with any Conversion pursuant to this paragraph 8, the holder of the shares of Series A Preferred Stock to be converted shall surrender the certificates representing such shares at the office of the Corporation with a written notice (a CONVERSION NOTICE) of election to convert completed and signed, specifying the number of shares to be converted. Unless the shares issuable on conversion are to be issued in the same name as the name in which such shares of Series A Preferred Stock are registered, each share surrendered for conversion shall be accompanied by instruments of transfer, in form satisfactory to the Corporation, duly executed by the holder or the holder's duly authorized attorney, and an amount sufficient to pay any transfer or similar tax.
(ii) As promptly as practicable after the Original Issue Date (subject surrender by a holder of certificates for shares of Series A Preferred Stock under paragraph 8(b)(i), the Corporation shall issue and shall deliver to such holder, or on the holder's written order to the limitations on conversion set forth in Section 4(a)(iiholder's transferee, (w) hereof). The a certificate or certificates for the whole number of shares of Common Stock issuable upon the conversion of such shares in accordance with the provisions of this paragraph 8, (x) any cash adjustment required pursuant to paragraph 8(f) and (y) in the event of a conversion hereunder in part, a certificate or certificates for the whole number of Series A Preferred Stock not being so converted.
(iii) Each conversion shall be determined by adding deemed to have been effected (the sum EFFECTIVE TIME) immediately prior to the close of business on the date of delivery of the Conversion Notice. At the Effective Time, the Person in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such conversion shall be deemed to have become the holder of record of the shares of Common Stock represented thereby at such time on such date and such conversion shall be into a number of whole shares of Common Stock in the aggregate equal to the product of the number of shares of Series A Preferred Stock surrendered and the Conversion Ratio in effect at such time on such date. All shares of Common Stock delivered upon conversion of the Series A Preferred Stock will upon delivery be duly and validly issued and fully paid and non-assessable, free of all liens and charges and not subject to any preemptive rights. At the Effective Time, the shares to be so converted shall no longer be deemed to be outstanding and all rights of a holder with respect to such shares surrendered for conversion shall immediately terminate except the right to receive the Common Stock and other amounts payable pursuant to this paragraph 8 and a certificate or certificates representing the shares of Series A Preferred Stock not converted.
(i) Upon delivery to the quotient obtained Corporation of a Conversion Notice by dividing a holder of shares of Series A Preferred Stock, the right of the Corporation to redeem such shares of Series A Preferred Stock shall terminate, regardless of whether a notice of redemption has been mailed pursuant to paragraph 7.
(xii) Except as provided above and in paragraph 8(g), the outstanding principal amount Corporation shall make no payment or adjustment for accrued and unpaid dividends on shares of this Debenture Series A Preferred Stock, whether or not in arrears, on conversion of such shares or for dividends in cash on the shares of Common Stock issued upon such conversion.
(i) The Corporation covenants that it will at all times reserve and keep available, free from preemptive rights, such number of its authorized but unissued shares of Common Stock as shall be required for the purpose of effecting conversions of the Series A Preferred Stock.
(ii) Prior to the delivery of any securities which the Corporation shall be obligated to deliver upon conversion of the Series A Preferred Stock, the Corporation shall comply with all applicable federal and state laws and regulations which require action to be taken by the Corporation.
(e) The Corporation will pay any and all documentary stamp or similar issue or transfer taxes payable in respect of the issue or delivery of shares of Common Stock on conversion of the Series A Preferred Stock pursuant hereto; provided that the Corporation shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue or delivery of shares of Common Stock in a name other than that of the holder of the Series A Preferred Stock to be converted and no such issue or delivery shall be made unless and until the Person requesting such issue or delivery has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid.
(yf) In connection with the Conversion Price (as defined herein)conversion by a holder of any shares of Series A Preferred Stock, and (ii) no fractions of shares of Common Stock shall be required to be issued to such holder, but in lieu thereof the Corporation shall pay a cash adjustment in respect of such fractional interest in an amount equal to such fractional interest on the business day on which such shares of Series A Preferred Stock are deemed to have been converted.
(Ii) In case the product Corporation shall at any time after the date of issue of the Series A Preferred Stock (A) declare a dividend or make a distribution on Common Stock payable in Common Stock, (B) subdivide or split the outstanding Common Stock, (C) combine or reclassify the outstanding Common Stock into a smaller number of shares, (D) issue any shares of its Capital Stock in a reclassification of Common Stock (including any such reclassification in connection with a consolidation or merger in which the Corporation is the continuing corporation) or, (E) consolidate with, or merge with or into, any other Person, or engage in any reorganization, recapitalization, sale of all or substantially all of the Corporation's assets to any entity or any other transaction which, in the case of any of the transactions referred in this subclause (E), is effected in such a manner that the holders of Common Stock are entitled to receive stock, securities or assets with respect to or in exchange for Common Stock (any such transaction described in this subclause (E), an ORGANIC CHANGE), the Conversion Ratio in effect at the time of the record date for such dividend or distribution or of the effective date of such subdivision, split, combination, consolidation, merger, reclassification or Organic Change shall be proportionately adjusted, or other provision shall be made, so that the conversion of the Series A Preferred Stock after such time shall entitle the holder to receive the aggregate number of shares of Common Stock, or other securities of the Corporation (or shares of any security or cash or other property into which such shares of Common Stock have been combined, consolidated, merged, reclassified or changed, or which were otherwise receivable with respect to or in exchange for shares of Common Stock, pursuant to paragraph 8(g)(i)(C), 8(g)(i)(D) or 8(g)(i)(E) above) which, if the Series A Preferred Stock had been converted immediately prior to such time, such holder would have owned upon such conversion and been entitled to receive by virtue of such dividend, distribution, subdivision, split, combination, consolidation, merger, reclassification or Organic Change, assuming such holder of Common Stock of the Corporation (x) is not a Person with which the outstanding principal amount Corporation consolidated or into which the Corporation merged or which merged into the Corporation or in connection with which such reclassification or Organic Change was made, as the case may be (CONSTITUENT PERSON), or an affiliate of this Debenture to be converted a Constituent Person and (y) failed to exercise any rights of election as to the product kind or amount of securities, cash and other property receivable upon such reclassification, change, consolidation, merger or Organic Change (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company kind or amount of securities, cash and other property receivable upon such reclassification, change, consolidation, merger or Organic Change, is not the same for each share of Common Stock of the Corporation held immediately prior to such reclassification, change, consolidation, merger or Organic Change by other than a Constituent Person or an affiliate thereof and in respect of which such rights of election shall not have timely elected been exercised (NON-ELECTING share), then for the purpose of this paragraph 8(g) the kind and amount of securities, cash and other property receivable upon such reclassification, change, consolidation, merger or Organic Change by each non-electing share shall be deemed to pay be the interest due on kind and amount so receivable per share by a Conversion Date in cash plurality of the non-electing shares). Such adjustment shall be made successively whenever any event listed above shall occur.
(ii) In case the Corporation shall issue or sell any Common Stock (other than Common Stock issued (A) pursuant to the terms hereofCorporation's existing or future stock option plans or pursuant to any other existing or future Common Stock-related director or employee compensation plan of the Corporation approved by the Board of Directors, subsection (iiB) shall not be used as consideration for the acquisition of a business or of assets, (C) in a firmly committed underwritten public offering, (D) to the Corporation's joint venture partners in exchange for interests in the calculation relevant joint venture, (E) upon conversion of shares of any series of Preferred Stock or (F) upon exercise or conversion of any security the issuance of which caused an adjustment under paragraph 8(g)(i), 8(g)(iii) or 8(g)(iv) hereof or the issuance of which did not require adjustment hereunder) without consideration or for a consideration per share less than the 30 Day Market Price on the date of such issuance, or shall issue securities convertible into Common Stock (other than such securities paid as dividends on any class of Preferred Stock) having a conversion price per share less than the 30 Day Market Price at the date of issuance of such convertible security, the Conversion Ratio to be in effect after such issuance or sale shall be determined by multiplying the Conversion Ratio in effect immediately prior to such issuance or sale by a fraction, (1) the numerator of which shall be the sum of the number of shares of Common Stock issuable upon a conversion hereunder.
outstanding immediately prior to such issuance or sale and the number of additional shares of Common Stock to be issued or sold (Bor, in the case of convertible securities, issued on conversion), and (2) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
denominator of which shall be the sum of (1x) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, outstanding immediately prior to such issuance or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 sale and (y) the number of days shares of Common Stock which the aggregate consideration receivable by the Corporation for which the total number of additional shares of Common Stock so issued or sold (or issuable on conversion) would purchase at the 30 Day Market Price in effect on the date of such principal amount was outstandingissuance or sale. In case any portion of the consideration to be received by the Corporation shall be in a form other than cash, the fair market value of such noncash consideration shall be utilized in the foregoing computation. Such fair market value shall be determined in good faith by the Board of Directors.
(Ciii) This Debenture In case the Corporation shall be fix a record date for the issuance of rights, options or warrants to the holders of its Common Stock or other securities entitling such holders to subscribe for or purchase shares of Common Stock (or securities convertible into shares of Common Stock) at a price per share of Common Stock at (or having a conversion price per share of Common Stock, if a security convertible into shares of Common Stock) less than the option 30 Day Market Price on such record date, the maximum number of shares of Common Stock issuable upon exercise of such rights, options or warrants (or conversion of such convertible securities) shall be deemed to have been issued and outstanding as of such record date and the HolderConversion Ratio shall be adjusted pursuant to paragraph 8(g)(ii) hereof, as though such maximum number of shares of Common Stock had been so issued for an aggregate consideration payable by the holders of such rights, options, warrants or convertible securities prior to their receipt of such shares of Common Stock. In case any portion of such consideration shall be in a form other than cash, the fair market value of such noncash consideration shall be determined as set forth in paragraph 8(g)(ii) hereof. Such adjustment shall be made successively whenever such record date is fixed. In the event that after fixing a record date such rights, options or warrants are not so issued, the Conversion Ratio shall be readjusted to the Conversion Ratio that would then be in effect if such record date had not been fixed. In the event that such rights, options or warrants expire in whole or in part at any time unexercised or in the event of a change in the number of shares of Common Stock to which the holders of such rights, options or warrants are entitled (other than pursuant to adjustment provisions therein comparable to those contained in this paragraph 8(g)), the Conversion Ratio shall again be adjusted as follows: (A) in the event that all of such rights, options or warrants expire unexercised, the Conversion Ratio shall be the Conversion Ratio that would then be in effect if such record date had not been fixed; (B) in the event that less than all of such rights, options or warrants expire unexercised, the Conversion Ratio shall be adjusted pursuant to paragraph 8(g)(ii) to reflect the maximum number of shares of Common Stock issuable upon exercise of such rights, options or warrants that remain outstanding (without taking into effect shares of Common Stock issuable upon exercise of rights, options or warrants that have lapsed or expired); and from time (C) in the event of a change in the number of shares of Common Stock to timewhich the holders of such rights, after options or warrants are entitled, the Original Issue Date (subject Conversion Ratio shall be adjusted to reflect the Conversion Ratio which would then be in effect if such holder had initially been entitled to such changed number of shares of Common Stock. Notwithstanding anything herein to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering contrary, no further adjustment to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, Ratio shall be irrevocable. Conversions hereunder shall have made upon the effect issuance or sale of lowering Common Stock upon the outstanding principal amount exercise of this Debenture plus all accrued and unpaid interest thereon in an amount equal any rights, options or warrants to the applicable conversionsubscribe for or purchase Common Stock, which shall be evidenced by notations made if any adjustment in the Conversion Notice. The Holder and Ratio was made or required to be made upon the Company shall maintain records showing record date for the principal amount converted and the date issuance or sale of such conversions. rights, options or warrants under this clause 8(g)(iii).
(iv) In case the event Corporation shall fix a record date for the making of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.a distribution to holders
Appears in 2 contracts
Sources: Stock Purchase Agreement (Signature Eyewear Inc), Stock Purchase Agreement (Signature Eyewear Inc)
Conversion. (A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the The outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture Principal and all accrued and unpaid interest thereon subsequent Interest on the Note may be converted into Securities pursuant to the terms set forth in Section 4.1(b) below (each, a “Conversion”).
(b) Unless otherwise agreed to in writing by the parties, the outstanding Principal and accrued and unpaid Interest on the Note shall automatically be subject to a Conversion into Securities as soon as the Qualifying Transaction occurs as stated in the Plan of Arrangement approved by the Definitive Agreement without any other further action required on the part of the Purchaser and the Note shall be deemed to be surrendered for conversion at issue. The date on which a such time for purposes of Section 4.1(d).
(c) Each Conversion Notice is delivered is under the "Conversion Date." Unless Note shall be effected in accordance with the Holder is converting following:
(i) the entire principal amount outstanding under this Debenture, Principal and accrued and unpaid interest of the Holder is not Note to be required to physically surrender this Debenture converted shall be converted in full into such number of Securities equal to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have quotient of:
(A) the effect product of:
(I) the aggregate of lowering all of the Principal outstanding principal amount of this Debenture plus and all accrued and unpaid interest thereon in Interest, multiplied by
(II) an amount equal to Company Value divided by the applicable conversionValuation Cap, which divided by,
(B) USD $10.00.
(d) For the purposes hereof, the Note shall be evidenced by notations made deemed to be surrendered for conversion on the day that the Purchaser delivers the Conversion Notice and the surrendered Note to the Corporation, or if the Note is automatically converted pursuant to Section 0, the date on which such automatic Conversion occurs in accordance therewith (in each case, the “Date of Conversion”).
(e) From and after the Date of Conversion, the Purchaser shall be entitled to be entered in the Conversion Noticebooks of the Corporation as the holder of the number of Securities into which the Note is convertible in accordance with the Section 4.1(a), and, as soon as practicable thereafter (and in any event, within five (5) Business Days), the Corporation shall deliver to the Purchaser a certificate or certificates for such Securities. The Holder and certificates representing the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records Securities to be issued upon conversion of the Holder Note shall bear such restrictive or other legends as may be controlling required by applicable laws.
(f) The Securities issued upon conversion shall rank pari passu in respect of dividends declared in favour of Purchaser on and determinative in after the absence Date of manifest errorConversion, from which applicable date they will for all purposes be and be deemed to be issued and outstanding as fully paid and non-assessable Securities.
Appears in 2 contracts
Sources: Note Purchase Agreement (Borealis Foods Inc.), Note Purchase Agreement (Borealis Foods Inc.)
Conversion. 3.1 The Lender has the right, at the Lender's option, at any time, to convert all but not less than all of the Loan (A"Conversion") This Debenture into shares in the Company having identical rights to the then most senior shares in the Company (if there shall be convertible into more than one class of shares of Common Stock at the option of the Holder, in whole or in part at any time and from time of Conversion) together with all rights provided by the Company to timepurchasers of such shares, after the Original Issue Date by contract or otherwise (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof"Shares"). The number of shares of Common Stock issuable upon a conversion hereunder Shares into which the Loan may be converted shall be determined by adding dividing the sum of (i) the quotient obtained Loan by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount a price equal to US$0.25 cents per share (I) the product of (x) "Conversion Price").
3.2 In order to effect a Conversion the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if Lender shall provide the Company shall have timely elected to pay with written notice (the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth ) of its election to convert the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject Loan pursuant to Section 4(b), each 3.1 above. As soon as practicable after receipt of the Conversion Notice, once giventhe Company shall report the issuance of shares to the Israeli Registrar of Companies, shall update its Shareholders Registry and shall issue a certificate in the name of the Lender for such class and number of shares to which the Lender shall be irrevocableentitled hereunder. Conversions hereunder No fractional shares shall have be issued. In lieu of the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal Company issuing any fractional shares to the applicable conversionLender, which upon the Conversion hereunder, the Company shall pay to the Lender the balance of the Loan that is not so converted. Conversion shall be evidenced deemed to have been made immediately prior to the close of business on the date of receipt by notations made in the Company of the Conversion Notice, and Lender shall be treated for all purposes as the record holder or holders of such Shares as of such date. The Holder and election of the Company shall maintain records showing Lender to effect a Conversion immediately prior to the principal amount converted and closing of a Sale (as defined below), may be made conditional upon the date closing of such conversions. In the event of any dispute or discrepancySale.
3.3 Upon Conversion, the records Company's obligation of the Holder repayment hereunder shall automatically be controlling deemed null and determinative in the absence of manifest errorvoid concurrently with such Conversion.
Appears in 2 contracts
Sources: Convertible Loan Agreement (XDL Capital Corp), Convertible Loan Agreement (Commtouch Software LTD)
Conversion. (i) Conversion at Option of Holder.
(A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (as defined in Section 4) (subject to the limitations on conversion set forth in Section 4(a)(ii3(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) equals the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and by (y) the Conversion Price (as defined hereinin Section 3(c)(i), and ). The Obligor shall deliver Common Stock certificates to the Holder prior to the Fifth (ii5th) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Trading Day after a Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
: (1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay principal and interest hereunder in shares of Common Stock;
; (2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
; (43) the Company Obligor has failed to timely satisfy its conversion obligations hereunderconversion; or
or (54) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(iiSection 3(a)(ii), then, at the Company may not pay interest option of the Holder, the Obligor, in kind and must pay interest in cash by deliveringlieu of delivering shares of Common Stock pursuant to Section 3(a)(i)(A), shall deliver, within three (3) Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted plus any interest due therein divided by the Conversion Price and multiplied by the highest closing price of the stock from date of the conversion notice till the date that such cash payment is made. Further, if the Obligor shall not have delivered any cash due in respect of conversion of this Debenture or as payment of interest thereon by the fifth (5th) Trading Day after the Conversion Date, the Holder may, by notice to the Obligor, require the Obligor to issue shares of Common Stock pursuant to Section 3(c), except that for such purpose the Conversion Price applicable thereto shall be the lesser of the Conversion Price on such the Conversion Date and (b) the product Conversion Price on the date of (x) such Holder demand. Any such shares will be subject to the quotient obtained by dividing .12 by 360 and (y) the number provisions of days for which such principal amount was outstandingthis Section.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company Obligor a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company Obligor in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company Obligor shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Secured Convertible Debenture (Power Technology Inc/Cn), Debenture Agreement (In Veritas Medical Diagnostics, Inc.)
Conversion. (Aa) This Debenture In the event of an Initial Public Offering, Qualified Offering or Qualified Parent Sale by ▇▇▇▇▇ or any of its Affiliates of any entity (other than the Company) of which the Company and its Subsidiaries, taken as a whole, comprise 90% or more of the assets, revenues or income (such entity, a “Successor Entity”), then, immediately prior to the consummation of such Initial Public Offering, Qualified Offering or Qualified Parent Sale, all then-outstanding Management Shares shall be convertible into shares of Common Stock at the option of the Holderautomatically canceled and each Management Member shall receive, in whole exchange for the cancellation of his or in part at any time and from time to timeher Management Shares, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The such number of shares of Common Stock issuable upon a conversion hereunder common stock (or equivalent class of securities) of the Successor Entity (“Successor Shares”) with an aggregate Fair Market Value equal to the aggregate Fair Market Value of such Management Member’s Management Shares (the Successor Shares so disbursed to the Management Members, and Successor Shares acquired by any Management Member thereafter, the “Converted Shares”) (such cancellation and exchange, the “Conversion”). All fractional Successor Shares shall be determined by adding paid in cash to the sum of applicable Management Member(s). ▇▇▇▇▇ agrees to (i) provide a written notice to the quotient obtained Management Members at least fifteen (15) Business Days prior to the date on which ▇▇▇▇▇ expects to consummate an Initial Public Offering, Qualified Offering or Qualified Parent Sale in which a Conversion shall occur and (ii) to the extent permitted by dividing Applicable Law, take any and all reasonable and necessary actions and comply with all necessary legal and regulatory requirements to permit the issuance of the Converted Shares to the Management Members; provided, however, that notwithstanding the foregoing, if (x) the outstanding principal amount of this Debenture an Initial Public Offering, Qualified Offering or Qualified Parent Sale in which a Conversion shall occur is to be converted consummated solely in the PRC, and (y) the then applicable legal and/or regulatory requirements of the PRC prohibit ▇▇▇▇▇ from issuing the Successor Shares to the Management Members (a “Non-Conversion Price (as defined hereinEvent”), then Management Members shall retain his or her outstanding Management Shares. Any such Successor Entity undertaking an Initial Public Offering or a Qualified Offering shall hereinafter be referred to as an “Offering Entity”, and any shares of such Offering Entity shall hereinafter be referred to as an “Offering Share”.
(iib) No Management Member shall be obligated to pay any expenses incurred in connection with any Conversion that does not result in the amount equal receipt or ownership by such Management Member of Tradeable Securities; provided, however, that the foregoing clause shall not, and shall not be deemed or construed to, eliminate or otherwise limit any Management Member’s obligation to (I) bear the product of (x) the outstanding principal amount of this Debenture to be converted costs and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days expenses for which such principal amount was outstanding, divided by (IIManagement Member is responsible as provided in Sections 7(c) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderand 8(c).
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Management Stockholders Agreement, Management Stockholders Agreement (Amc Entertainment Holdings, Inc.)
Conversion. (Ai) This Debenture Each share of Preferred Stock shall be convertible into shares of Common Stock at the Conversion Ratio (subject to reduction under Section 5(a)(ii) and (iii), at the option of the Holder, holder in whole or in part at any time and from time to time, after the expiration of 45 days after the Original Issue Date (as defined in Section 7 below) (the "Conversion Term"). Any conversion under this Section 5(a)(i) shall be of a minimum amount of at least 12,500 shares of Preferred Stock. The holder shall effect conversions by delivering to the Company a written notice (the "Holder Conversion Notice"), accompanied by the certificate representing the shares of the Preferred Stock to be converted. Each Holder Conversion Notice shall specify the number of shares of Preferred Stock to be converted and the date on which such conversion is to be effected (the "Holder Conversion Date"), which shall in no event be earlier than the date such Holder Conversion Notice is given in accordance with Section 5(k) below. Each Holder Conversion Notice, once given, shall be irrevocable (subject to the limitations on conversion set forth in Section 4(a)(ii5(c) hereofbelow). The If the holder is converting less than all shares of Preferred Stock, the Company shall promptly deliver to the holder a certificate for such number of shares of Preferred Stock as have not been converted.
(ii) If on the Conversion Date (as defined below) applicable to any conversion under Section 5(a) or 5(b), the Conversion Price (as defined below) then in effect is such that the aggregate number of shares of Common Stock that would then be issuable upon a conversion hereunder of all then-outstanding shares of Preferred Stock, when combined with any shares of Common Stock previously issued upon conversion of any shares of Preferred Stock, would equal or exceed 1,070,000 shares (the "Issuable Maximum"), then the Company shall be determined obligated to effect the conversion of only such portion of each share of Preferred Stock subject to such conversion as is represented by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price Percentage (as defined hereinin the next sentence), and the remaining portion of such share shall be subject to the mandatory redemption provisions of Section 6. The "Conversion Percentage" shall be a fraction, the numerator of which is the "Allowable Conversion Maximum" (iias defined in the next sentence) and the amount equal to (I) denominator of which is the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the total number of days for which shares of Preferred Stock outstanding prior to such principal amount was outstanding, divided by (II) conversion. The Allowable Conversion Maximum at any time shall be the Conversion Price on difference between the Conversion Date, provided, that if Issuable Maximum and the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the total number of shares of Common Stock issuable previously issued upon a conversion hereunderof shares of Preferred Stock. In the event of any stock split, stock dividend, recapitalization, reorganization or other similar action or event, appropriate adjustment shall be made to the Issuable Maximum and the Allowable Conversion Maximum.
(Biii) Notwithstanding anything to the contrary contained herein, if If on any Conversion Date:
Date for any shares of Preferred Stock applicable to any conversion under Section 5(a) or 5(b), the Per Share Market Value of the Common Stock on the immediately preceding date exceeds $7.75, the number of shares issued upon conversion of such shares of Preferred Stock shall be reduced by a number of shares equal to 50% of (1A) the amount by which such Per Share Market Value exceeds $7.75, divided by (B) such Per Share Market Value, times (C) the number of shares of Common Stock at which would otherwise be issued upon such conversion, but for the time authorized, unissued and unreserved reduction provided for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;this Section 5(a)(iii).
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) Each share of the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture Preferred Stock shall be convertible into shares of Common Stock at the Conversion Ratio (subject to reduction under Section 5(a)(ii) and (iii) above), at the option of the Holder, Company in whole or in part at any time and from time to time, on or after the expiration of 120 days after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof)Date. The Holder Company shall effect conversions such conversion by delivering to the holders of such shares of Preferred Stock to be converted a written notice (the "Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on , which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have ; provided, however, that during the effect period of lowering two years after the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversionOriginal Issue Date, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing have no right to deliver a Company Conversion Notice and effect the principal amount conversion of shares of Preferred Stock under this Section 5(b) unless either (i) all of such shares may be converted into shares of Common Stock in accordance with Section 5(a)(ii); or (ii) all of such shares may be either converted into shares of Common Stock in accordance with Section 5(a)(ii) or may be redeemed and the entire redemption price paid in full in accordance with Section 6 without violating the CGCL (as defined below in Section 6). Each Company Conversion Notice shall specify the number of shares of Preferred Stock to be converted and the date on which such conversion is to be effected (the "Company Conversion Date"). The Company shall give such Company Conversion Notice in accordance with Section 5(k) below at least two Trading Days before the Company Conversion Date. Any such conversion shall be effected on a pro rata basis among the holders of Preferred Stock. Upon the conversion of shares of Preferred Stock pursuant to a Company Conversion Notice, the holders of the Preferred Stock shall surrender the certificates representing such shares at the office of the Company or of any transfer agent for the Preferred Stock or Common Stock. If the Company is converting less than all shares of the Preferred Stock, the Company shall, upon conversion of such conversionsshares subject to such Company Conversion Notice and receipt of the certificate or certificates representing such shares of Preferred Stock, deliver to the holder or holders a certificate for such number of shares of Preferred Stock as have not been converted. Each of a Holder Conversion Notice and a Company Conversion Notice is sometimes referred to herein as a "Conversion Notice," and each of a "Holder Conversion Date" and a "Company Conversion Date" is sometimes referred to herein as a "Conversion Date."
(c) Three Trading Days after the Conversion Date, the Company will deliver to the holder (i) a certificate or certificates which shall be free of restrictive legends and trading restrictions (other than those then required by law), representing the number of shares of Common Stock being acquired upon the conversion of shares of Preferred Stock (subject to any reduction required pursuant to Section 5(a)(ii) or (iii)), and (ii) subject to Section 6 below, the certificate representing the number of shares of Preferred Stock not converted; provided, however that the Company shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon conversion of any shares of Preferred Stock (or with respect to shares subject to redemption pursuant to Sections 5(a)(ii) and 6, to pay the redemption price payable under Section 6), until certificates evidencing such shares of Preferred Stock are either delivered to the Company or any transfer agent for the Preferred Stock or Common Stock, or the holder notifies the Company that such certificates have been lost, stolen or destroyed and provides a bond (or other adequate security acceptable to the Company) satisfactory to the Company to indemnify the Company from any loss incurred by it in connection therewith. The Company shall, upon request of the holder, use its best efforts to deliver any certificate or certificates required to be delivered by the Company under this Section 5(c) electronically through the Depository Trust Corporation or another established clearing corporation performing similar functions. In the case of a conversion pursuant to a Holder Conversion Notice, if such certificate or certificates are not delivered by the date required under this Section 5(c), the holder shall be entitled by written notice to the Company at any time on or before such holder's receipt of such certificate or certificates thereafter, to rescind such conversion, in which event the Company shall immediately return the certificates representing the shares of Preferred Stock tendered for conversion.
(i) The Conversion Price (the "Conversion Price") in effect on any Conversion Date shall be the lesser of the Closing Price on the Trading Day immediately preceding the Original Issue Date or 82.5% of the average of the Closing Price on the three Trading Days immediately preceding the Conversion Date. For purposes of this Section, the "Closing Price" on any Trading Day shall mean the last reported closing price of the Common Stock of the Company on such day on the principal securities exchange on which the Common Stock is listed or, if the Common Stock is not so listed, the last reported bid price of the Common Stock as reported on The Nasdaq National Market on such date or, if the Common Stock is neither so listed nor so reported, the last reported bid price of the Common Stock as quoted by a registered broker-dealer for which such quotes are available on such date.
(ii) If the Company, at any time while any shares of Preferred Stock are outstanding, (a) shall pay a stock dividend or otherwise make a distribution or distributions on shares of its Junior Stock payable in shares of its capital stock (whether payable in shares of its Common Stock or of capital stock of any class), (b) subdivide outstanding shares of Common Stock into larger number of shares, (c) combine outstanding shares of Common Stock into a smaller number of shares, or (d) issue by reclassification of shares of Common Stock any shares of capital stock of the Company, the Conversion Price designated in Section 5(d)(i) shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock of the Company outstanding before such event and of which the denominator shall be the number of shares of Common Stock outstanding after such event. Any adjustment made pursuant to this Section 5(d)(ii) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
(iii) In case the Company, at any time while any shares of the Preferred Stock are outstanding, shall issue rights or warrants to all holders of Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the Per Share Market Value of Common Stock at the record date mentioned below, the Conversion Price designated in Section 5(d)(i) shall be multiplied by a fraction, of which the denominator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding on the date of issuance of such rights or warrants plus the number of additional shares of Common Stock offered for subscription or purchase, and of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding on the date of issuance of such rights or warrants plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at such Per Share Market Value. Such adjustment shall be made whenever such rights or warrants are issued, and shall become effective immediately after the record date for the determination of stockholders entitled to receive such rights or warrants. However, upon the expiration of any right or warrant to purchase Common Stock the issuance of which resulted in an adjustment in the Conversion Price designated in Section 5(d)(i) pursuant to this Section 5(d)(iii), if any such right or warrant shall expire and shall not have been exercised, the Conversion Price designated in Section 5(d)(i) shall immediately upon such expiration be recomputed and effective immediately upon such expiration be increased to the price which it would have been (but reflecting any other adjustments in the Conversion Price made pursuant to the provisions of this Section 5 after the issuance of such rights or warrants) had the adjustment of the Conversion Price made upon the issuance of such rights or warrants been made on the basis of offering for subscription or purchase only that number of shares of Common Stock actually purchased upon the exercise of such rights or warrants actually exercised.
(iv) In case the Company, at any time while shares of Preferred Stock are outstanding, shall distribute to all holders of Common Stock (and not to holders of Preferred Stock) evidences of its indebtedness or assets or rights or warrants, to subscribe for or purchase any security (excluding those referred to in Section 5(d)(iii) above) then in each such case the Conversion Price at which each share of the Preferred Stock shall thereafter be convertible shall be determined by multiplying the Conversion Price in effect prior to the record date fixed for determination of stockholders entitled to receive such distribution by a fraction of which the denominator shall be the Per Share Market Value of Common Stock determined as of the record date mentioned above, and of which the numerator shall be such Per Share Market Value of the Common Stock on such record date less the then fair market value at such record date of the portion of such assets or evidence of indebtedness so distributed applicable to one outstanding share of Common Stock as determined by the Board of Directors of the Company in good faith; provided, however that in the event of a distribution exceeding ten percent (10%) of the net assets of the Company, then such fair market value shall be determined by a nationally recognized or major regional investment banking firm or firm of independent certified public accountants of recognized standing (which may be the firm that regularly examines the financial statements of the Company) (an "Appraiser") selected in good faith by the holders of a majority in interest of the shares of Preferred Stock; and provided, further that the Company, after receipt of the determination by such Appraiser shall have the right to select an additional Appraiser, in which case the fair market value shall be equal to the average of the determinations by each such Appraiser. In either case the adjustments shall be described in a statement provided to all holders of Preferred Stock of the portion of assets or evidences of indebtedness so distributed or such subscription rights applicable to one share of Common Stock. Such adjustment shall be made whenever any dispute such distribution is made and shall become effective immediately after the record date mentioned above.
(v) All calculations under this Section 6 shall be made to the nearest cent or discrepancythe nearest 1/100th of a share, as the case may be.
(vi) Whenever the Conversion Price is adjusted pursuant to Section 5(d)(ii),(iii), (iv) or (v), the records Company shall promptly mail to each holder of shares of Preferred Stock, a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the Holder facts requiring such adjustment.
(vii) In case of any reclassification of the Common Stock, any consolidation or merger of the Company with or into another person, sale or transfer of all or substantially all of the assets of the Company or any compulsory share exchange pursuant to which share exchange the Common Stock is converted into other securities, cash or property, then the holders of the shares of Preferred Stock then outstanding shall have the right thereafter to convert such shares only into the kind and amount of shares of stock and other securities and property receivable upon or deemed to be controlling and determinative held following such reclassification, consolidation, merger, sale, transfer or share exchange by a holder of a number of shares of the Common Stock of the Company into which such shares Preferred Stock could have been converted immediately prior to such reclassification, consolidation, merger, sale, transfer or share exchange. The terms of any such consolidation, merger, sale, transfer or share exchange shall include such terms so as to continue to give to the holder of shares of Preferred Stock the right to receive the securities or property set forth in this Section 5(d)(vii) upon any conversion following such consolidation, merger, sale, transfer or share exchange. This provision shall similarly apply to successive reclassifications, consolidations, mergers, sales, transfers or share exchanges.
(viii) In case:
(A) the absence of manifest error.Company shall declare a
Appears in 2 contracts
Sources: Convertible Preferred Stock Purchase Agreement (Alpharel Inc /Ca/), Convertible Preferred Stock Purchase Agreement (Alpharel Inc /Ca/)
Conversion. (A) This Debenture shall be convertible into shares If any and all amounts due hereunder are not paid in full on or before the closing of Common Stock a Qualified Financing, at the option election of Holder, the entire principal balance of this Note, together with any accrued and unpaid interest thereon, shall convert into fully paid and non-assessable shares (rounded up to the nearest whole share) of the Holderseries of preferred stock of the Company issued pursuant to such Qualified Financing (the “Conversion Shares”), in whole or in part at any time and from time such conversion to timeoccur promptly following the delivery by Holder of a Notice of Conversion, after the Original Issue Date form of which is attached hereto as Annex A (subject to the limitations on conversion set forth in Section 4(a)(ii) hereofeach, a “Notice of Conversion”). The number of shares Conversion Shares to be issued to Holder upon conversion of Common Stock issuable upon this Note pursuant to a conversion hereunder Qualified Financing shall be determined by adding the sum of (i) equal to the quotient obtained by dividing (x) the outstanding entire principal amount balance of this Debenture to be converted and (y) the Conversion Price (as defined herein)Note, and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on together with any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent thereon, as of the date of conversion, by the Mandatory Conversion Price. A “Qualified Financing” shall mean sale (or series of related sales, all of which are consummated within ninety (90) days of each other) by the Company of shares of preferred stock after March 27, 2020 with the principal purpose of raising capital and with aggregate gross cash proceeds to the Company of not less than $3,600,000 (or such other amount approved in writing by Holder). The issuance of Conversion Shares pursuant to the conversion at issueof this Note in connection with a Qualified Financing shall be upon and subject to the same terms and conditions applicable to the Conversion Shares sold in the Qualified Financing. The date on which a No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice is delivered is the "of Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenturefrom be required. To effect conversions hereunder, the Holder is not be required to shall physically surrender this Debenture Note to the Company as promptly as is reasonably practicable after Holder’s receipt of the Conversion Shares. Upon conversion of this Note in order to effect conversions. Subject to Section 4(b)full, each Conversion Notice, once given, Company shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of forever released from all its obligations and liabilities under this Debenture plus all accrued Note and unpaid interest thereon in an amount equal to the applicable conversion, which this Note shall be evidenced by notations made in the Conversion Notice. The Holder deemed to be cancelled as of such time and any collateral of the Company shall maintain records showing pledged under the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder Security Agreement shall be controlling and determinative in the absence of manifest errorreleased.”
Appears in 2 contracts
Sources: 12% Senior Secured Convertible Note (FWHC Holdings, LLC), 12% Senior Secured Convertible Note (H-Cyte, Inc.)
Conversion. (A) This Debenture shall be convertible into shares of Common Stock The Lender may, at the option of the HolderLender’s option, in whole or in part at any time and from time to time, after the Original Issue Date (subject time prior to the limitations close of business of the Borrower on conversion set forth the fifth business day prior to the Maturity Date, elect to convert, in Section 4(a)(iiwhole or in part, the Principal Amount outstanding and accrued but unpaid interest into common shares (“Common Shares”) hereofin the capital of the Biologix Hair Inc. (the “Borrower Parent”). The number , a company incorporated under the laws of shares the State of Florida with its principal offices at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ 2H2.. Each Common Stock issuable upon Share so issued will for these purposes be valued based on a conversion hereunder shall be determined by adding price (the sum of “Conversion Price”) equal to: (i) if the quotient obtained by dividing Borrower Parent is a privately held company upon the Notice of Conversion, the greater of (xa) US$1 per Common Share and (b) the outstanding principal amount price per Common Share of this Debenture to be converted and (y) most recent private placement of securities completed by the Conversion Price (Borrower Parent as defined herein), and at the applicable Maturity Date less 20%; or (ii) if upon the amount equal to (I) Notice of Conversion the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due Borrower Parent is a public company whose securities are listed on a Conversion Date in cash pursuant to the terms hereof, subsection stock exchange or quoted on an over-the-counter quotation system (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon whether directly or resulting from a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act Capital Reorganization (as defined in Section 67 (b) (iv) below);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash a price per Common Share equal to the product of (a) the outstanding principal amount average daily closing price of the Debentures to be converted Common Shares during the 10 day period beginning on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option date of the Notice of Conversion, less 20%. The Lender, or the current holder of this Note (the “Holder”), in whole or in part at any time and from time to time, after the Original Issue Date shall give a minimum of five business days prior written notice (subject “Notice of Conversion”) to the limitations on conversion set forth in Borrower and the Borrower Parent at their address for purposes of notice under Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to 13 together with the Company a completed notice substantially in the form Conversion Form attached hereto as Exhibit A B exercising the right to convert this Note in accordance with the provisions hereof. Thereupon the Holder shall be entitled to be entered in the books of the Borrower Parent as at the date of conversion as the holder of the number of Common Shares into which this Note (a "Conversion Notice"). The Conversion Notice shall set forth or the remaining principal amount portion converted) is convertible in accordance with the provisions of this Debenture Section and, as soon as practicable thereafter and all accrued upon surrender of this Note to the Borrower, the Borrower Parent shall deliver to the Holder a certificate or certificates for such Common Shares. If the Lender provides a Notice of Conversion to the Borrower and unpaid interest thereon subsequent Borrower Parent with respect to the conversion at issue. The date on which of a Conversion Notice is delivered is portion of the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this DebentureNote, the Borrower shall issue to the Lender a new convertible promissory note, having the same terms and conditions as this Note, representing the principal amount of the Note not converted. For the purposes of this Section, this Note shall be deemed to be surrendered for conversion on the date (herein called “Conversion Date”) which is five business days following the date on which Notice of Conversion is received by the Borrower and Borrower Parent, provided that if this Note is surrendered for conversion on a day on which the register of Common Shares is closed, the Holder shall become the holder of record of such Common Shares as at the date on which such register is next re-opened. The Borrower Parent shall not be required to physically surrender this Debenture issue fractional Common Shares upon the exercise of any conversion right. In lieu of fractional Common Shares, the number of Common Shares issuable on conversion shall be rounded up or down, as the case may be, to the Company in order to effect conversionsnearest whole Common Share. Subject to Section 4(b)For greater certainty, each Conversion Notice, once given, no cash payments shall be irrevocablemade by the Borrower or Borrower Parent in lieu of issuing any fractional interest in a Common Share. Conversions hereunder The Borrower Parent covenants that it will issue and deliver to the Lender certificates evidencing such number of Common Shares as shall have then be issuable upon the effect of lowering the outstanding principal amount conversion of this Debenture plus Note or such portion of it as is specified in the Notice of Conversion. The Borrower Parent covenants that all accrued and unpaid interest thereon in an amount equal to the applicable conversion, Common Shares which shall be evidenced so issuable shall be duly and validly issued as fully paid and non-assessable. The Lender acknowledges and agrees that such certificates may bear legends regarding applicable restrictions on transfers of the Common Shares under applicable Canadian and U.S. securities laws. The Borrower Parent represents and warrants that a sufficient number of Common Shares are authorized and have been reserved for issuance to satisfy the Borrower’s and Borrower Parent’s obligations on conversion of the Note. The Borrower Parent shall not declare or pay dividends in respect of the Common Shares following receipt by notations made in the Borrower Parent of the Notice of Conversion, until after the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorDate.
Appears in 2 contracts
Sources: Intellectual Property Purchase and Sale Agreement (Biologix Hair Inc.), Intellectual Property Purchase and Sale Agreement (Biologix Hair Inc.)
Conversion. (A) This Debenture shall be convertible into If any holder of full or fractional shares of Common Series C Stock surrenders to the Corporation (at the option principal office of the Holder, in whole Corporation) certificate or in certificates representing all or part at any time and from time to time, after of the Original Issue Date holder's shares of Series C Stock together with either (subject 1) a certificate stating that the holder has received the advice of counsel to the limitations on effect that it is permissible under the federal banking laws and regulations applicable to the Corporation that the shares of Series C Stock represented by such certificate or certificates convert as contemplated by this Section 6 or (2) a certificate stating that the holder is transferring the holders' shares in a Widely Dispersed Offering (as defined below) and subsequently transfers the shares in a Widely Dispersed Offering, then the shares of Series C Stock represented by such certificate or certificates will convert as follows:
(a) If at the time of conversion set forth the Series B junior voting preferred stock, par value $0.01 per share, of the Corporation (the "Series B Stock") has not converted into the "Reference Package" of the Series B Stock in Section 4(a)(iiaccordance with the terms of the certificate of incorporation of the Corporation relating to the Series B Stock, each share of Series C Stock of such holder will convert into one share (and any fractional share of such holder will convert into the same fraction of a share) hereofof Series B Stock; and
(b) Otherwise, each share of Series C Stock of such holder will convert into the Reference Package (and any fractional share of such holder will convert into the same fraction of the Reference Package). The number of shares of Common Stock issuable upon a conversion hereunder shall holder will be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture entitled to be converted and (y) the Conversion Price (receive, as defined herein)applicable, and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) a certificate or certificates representing the quotient obtained by dividing .12 by 360 and Series B Stock into which such shares have been converted or (2) a certificate or certificates representing any capital stock comprising a part of the number of days for Reference Package and into which such principal amount was outstandingtheir shares have been converted (and, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation case of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), any cash or other property then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Investment Agreement (Dime Bancorp Inc), Investment Agreement (Warburg Pincus Equity Partners Lp)
Conversion. (Aa) This Debenture shall be convertible into shares of Common Stock at At the option of the HolderPayee’s option, in whole or in part at any time and from time prior to timepayment in full of the principal balance of this Note, after the Original Issue Date (subject Payee may elect to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number convert all or any portion of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture Note into that number of shares (the “Conversion Shares”) equal to: (i) the portion of the principal amount of the Note being converted pursuant to this Section 15, divided by (ii) $10.00, rounded up to the nearest whole number; provided, however, that the principal amount of any Working Capital Promissory Notes converted shall not exceed in the aggregate $300,000. Each Conversion Share shall have the same terms and conditions as the private placement shares issued by the Maker to the Payee pursuant to a private placement, as described in Maker’s Registration Statement on Form S-1 (333-253171). The Conversion Shares and any other equity security of Maker issued or issuable with respect to the foregoing by way of a share dividend or share split or in connection with a combination of shares, recapitalization, amalgamation, consolidation or reorganization, shall be entitled to the registration rights set forth in that certain Registration and Shareholder Rights Agreement, dated as of March 9, 2021, among the Company, the Payees and the other parties thereto.
(b) Upon any complete or partial conversion of the principal amount of this Note, (i) such principal amount shall be so converted and (y) the Conversion Price (as defined herein)such converted portion of this Note shall become fully paid and satisfied, and (ii) the amount equal Payee shall surrender and deliver this Note, duly endorsed, to Maker or such other address which Maker shall designate against delivery of the Conversion Shares, (Iiii) Maker shall promptly deliver a new duly executed Note to the product of (x) Payee in the outstanding principal amount that remains outstanding, if any, after any such conversion and (iv) in exchange for all or any portion of the surrendered Note, Maker shall deliver to Payee the Conversion Shares, which shall bear such legends as are required, in the opinion of counsel to Maker or by any other agreement between Maker and the Payee and applicable state and federal securities laws.
(c) The Payee shall pay any and all issue and other taxes that may be payable with respect to any issue or delivery of the Conversion Shares upon conversion of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, Note pursuant hereto; provided, however, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) Payee shall not be used obligated to pay any transfer taxes resulting from any transfer requested by the Payee in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderconnection with any such conversion.
(Bd) Notwithstanding anything to the contrary contained herein, if on any The Conversion Date:
(1) the number Shares shall not be issued upon conversion of shares of Common Stock at the time authorized, unissued this Note unless such issuance and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance comply with all applicable provisions of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandinglaw.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Working Capital Loan Agreement (Vector Acquisition Corp II), Working Capital Loan Agreement (Vector Acquisition Corp II)
Conversion. (A) This Debenture A. Lender shall be convertible into shares have the right, subject to the terms and provisions of Common Stock this ARTICLE X, at the option of the HolderLender, (i) at any time, to convert, the unpaid principal amount of the Term Loans or any portion thereof, and any accrued and unpaid interest on such Term Loans, and (ii) at any time prior to the Termination Date, to simultaneously advance and convert all or any portion of the remaining Commitment, or after the Commitment Period, to simultaneously advance and convert an amount equal to the amount of the Commitment, if any, which was not advanced as a Term Loan during the Commitment Period (it being acknowledged that this does not extend the Commitment Period), into fully paid and non-assessable shares of Borrower Common Stock or any capital stock or other securities into which such Borrower Common Stock shall have been changed or any capital stock or other securities resulting from a reclassification thereof ("Shares"). Such conversion of Term Loans and simultaneous advance and conversion of the Commitment to Shares shall be made at an amount per Share which is equal to the then Current Conversion Price, as further described below. The Term Loans and Commitment shall continue to be convertible, in whole or in part at any time part, even though Borrower may have given notice of prepayment of the Term Loans or termination of the Commitment pursuant to Sections 2.01.D and from time 2.02.C, so long as Lender's notice of election to timeconvert has been delivered to Borrower within the Early Termination period.
B. For convenience, after the Original Issue Date (subject conversion pursuant to this Article X of all or a portion of the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and Term Loans (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product and/or of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent if elected by Lender) and/or Commitment into Shares is herein sometimes referred to the conversion at issue. The date on which a Conversion Notice is delivered is as the "Conversion Date.conversion" Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorTerm Loans/Commitment.
Appears in 2 contracts
Sources: Convertible Loan and Security Agreement (Covol Technologies Inc), Convertible Loan and Security Agreement (Pacificorp /Or/)
Conversion. In accordance with and pursuant to such Certificate of Designations, the Holder hereby elects to convert the number of shares of the Corporation’s Series A Cumulative Convertible Preferred Stock (the “Series A”) This Debenture shall be convertible indicated below into shares of Common Stock at of the option Corporation (the “Common Shares”) as of the date specified below. Name of Holder: ___________________ Holder Conversion Date: ___________________ Number of Shares of Series A Held by ▇▇▇▇▇▇: _______________________ Amount Being Converted Hereby: _______________________ Series A Held After Conversion: _______________________ If the shares of Series A to be converted are held through a nominee, please provide details of the brokerage account: Broker: ___________________________________________ DTC No.: _____________________________________ Acct. Name: ______________________________________________ For Further Credit (if applicable): ___________________________________________ Delivery of Shares: Pursuant to this Notice of Conversion, the Corporation shall deliver the applicable number of Common Shares issuable in accordance with the terms of the Certificate of Designations as set forth below. If Common Shares are to be issued in the name of a person other than the Holder, the Holder will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as reasonably requested by the Corporation in whole or in part at any time and from time to time, after the Original Issue Date (subject accordance therewith. No fee will be charged to the limitations on conversion set forth in Section 4(a)(ii) hereof)Holder for any conversion, except for such transfer taxes, if any. The number Holder acknowledges and confirms that the Common Shares issued pursuant to this Notice of shares Conversion will, to the extent not previously registered by the Corporation under the U.S. Securities Act of 1933, as amended (the “Securities Act”) be “restricted securities” within the meaning of Rule 144 under the Securities Act, unless the Common Stock issuable upon Shares are covered by a conversion hereunder valid and effective registration statement under the Securities Act or this Notice of Conversion includes a valid opinion from an attorney stating that such Common Shares can be issued free of restrictive legend, which shall be determined by adding the sum of (i) Corporation in its sole discretion. If the quotient obtained by dividing (x) the outstanding principal amount of this Debenture Common Shares are to be converted and delivered through DWAC, please provide details of the brokerage account for delivery (y) Note: Common Shares that will be issued as “restricted securities” are not eligible for settlement through DWAC): Broker: ___________________________________________ DTC No.: _____________________________________ Acct. Name: ______________________________________________ For Further Credit (if applicable): ___________________________________________ The undersigned (collectively, the Conversion Price (as defined herein“Stockholders”), and being holders of Series A Cumulative Convertible Preferred Stock, par value $0.001 per share (iithe “Series A”) of ▇▇▇▇▇▇▇ Motion Inc., a Delaware corporation (the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b“Corporation”), each Conversion NoticeStockholder acting with respect to all shares of Series A owned by such Stockholder or over which such Stockholder otherwise possesses the authority to vote, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal hereby consent to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records adoption of the Holder shall be controlling and determinative in following resolutions by written consent pursuant to Section 228 of the absence General Corporation Law of manifest error.the State of Delaware:
Appears in 2 contracts
Sources: Transaction Agreement (Garrett Motion Inc.), Transaction Agreement (Garrett Motion Inc.)
Conversion. (Aa) This Debenture shall Each share of this Series may be convertible into shares of Common Stock converted at any time, at the option of the Holderholder thereof, in whole the manner hereinafter provided, into fully-paid and nonassessable Common Shares, provided, however, that on any redemption of any shares of this Series or any liquidation of the Corporation, the right of conversion shall terminate at the close of business on the full business day next preceding the date fixed for such redemption or for the payment of any amounts distributable on liquidation to the holders of the shares of this Series. The initial conversion rate for shares of this Series shall be one Common Share for each one share of this Series surrendered for conversion, representing an initial conversion price (for purposes of Section 7(g)) of U.S. $6.75 per share of the Corporation's Common Shares (hereinafter, the "Conversion Price"). The applicable conversion rate and Conversion Price from time to time in effect are subject to adjustment as hereinafter provided.
(b) Whenever the Conversion Price shall be adjusted as provided in Section 7(g) hereof, the Corporation shall forthwith file at each office designated for the conversion of the shares of this Series, a statement, signed by any of the Chairman of the Board, the President, any Vice President or the Treasurer of the Corporation, showing in reasonable detail the facts requiring such adjustment. The Corporation shall also cause a notice setting forth any such adjustments to be sent by mail, first class, postage prepaid, to each record holder of shares of this Series at his or its address appearing on the stock register. If such notice relates to an adjustment resulting from an event referred to in paragraph 7(g)(vii), such notice shall be included as part of the notice required to be mailed and published under the provisions of paragraph 7(g)(vii) hereof.
(c) The right of conversion shall be exercised by the holder by the surrender of the certificates representing shares of this Series to be converted to the Corporation at any time and from time to time, after during normal business hours at the Original Issue Date (subject to office or agency then maintained by it for the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a this Series (the "Conversion Office"), accompanied by written notice to the Corporation of such holder's election to convert and, if so required by the Corporation or any conversion hereunder shall be determined agent, by adding an instrument of transfer, in form satisfactory to the sum Corporation and to any conversion agent, duly executed by the registered holder or by such holder's duly authorized attorney, and transfer tax stamps or funds therefor, if required pursuant to Section 7(k).
(d) As promptly as practicable after the surrender for conversion of (i) the quotient obtained by dividing (x) the outstanding principal amount one or more certificates representing any shares of this Debenture Series in the manner provided in Section 7(c) and the payment in cash of any amount required by the provisions of Section 7(k), the Corporation will deliver or cause to be converted and (y) delivered at the Conversion Price (as defined herein)Office to or upon the written order of the holder of such shares, and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) a certificate or certificates representing the number of days full Common Shares issuable upon such conversion, issued in such name or names as such holder may direct, subject to any applicable contractual restrictions and any restrictions imposed by applicable securities laws. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of such surrender of certificates representing shares of this Series in proper order for conversion, and all rights of the holder of such shares as a holder of such shares shall cease at such time, and the person or persons in whose name or names the certificates for such Common Shares are to be issued shall be treated for all purposes as having become the record holder or holders thereof at such time; provided, however, that any such surrender on any date when the stock transfer books of the Corporation shall be closed shall constitute the person or persons in whose name or names the certificates for such Common Shares are to be issued as the record holder or holders thereof for all purposes immediately prior to the close of business on the next succeeding day on which such principal amount was outstanding, divided by stock transfer books are opened.
(IIe) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used Upon conversion in the calculation manner provided in this Section 7 of only a portion of the number of shares of Common Stock issuable this Series represented by a certificate so surrendered for conversion, the Corporation shall issue and deliver or cause to be delivered at the Conversion Office to or upon the written order of the holder of the certificate so surrendered for conversion, at the expense of the Corporation, a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) new certificate or certificates representing the number of shares of Common Stock at this Series representing the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount unconverted portion of the Debentures certificate so surrendered, issued in such name or names as such holder may direct, subject to be converted on such Conversion Date any applicable contractual restrictions and (b) the product of (x) the quotient obtained any restrictions imposed by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingapplicable securities laws.
(Cf) This Debenture All shares of this Series which shall have been surrendered for conversion as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares, including the rights, if any, to receive notices and to vote, shall forthwith cease and terminate except only the right of the holder thereof to receive Common Shares in exchange therefor. Any shares of this Series so converted shall be convertible into shares of Common Stock at retired and canceled and shall not be reissued, and the option of the Holder, in whole or in part at any time and Corporation may from time to time, after time take such appropriate action as may be necessary to reduce the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount authorized shares of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion DateSeries accordingly." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Warburg Pincus Ventures Lp), Securities Purchase Agreement (Sonus Corp)
Conversion. (A) This Debenture 4.1 If the Merger Agreement is terminated, then, following such termination, each share of Series E Preferred Stock shall be convertible automatically convert into [__________] shares of Common Class A Stock at the option of the Holder, in whole or in part at any time and (as adjusted from time to timetime to appropriately reflect the effect of any stock splits, reverse splits, stock dividends, combinations and other similar events affecting the shares of Class A Stock and occurring after the Original Issue Date (subject date of issuance of the Series E Preferred Stock).
4.2 On the effective date of the conversion of the Series E Preferred Stock pursuant to Section 4.1, all rights with respect to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Series E Preferred Stock issuable upon a conversion hereunder shall be determined by adding so converted, including the sum rights, if any, to receive notices, will terminate, except the rights of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture Holders thereof to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days receive certificates for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Class A Stock issuable upon a conversion hereunderinto which such shares of Series E Preferred Stock have been converted; and (2) exercise the rights to which they are entitled as Holders of Class A Stock.
(B) Notwithstanding anything 4.3 The Issuer shall at all times reserve and keep available for issuance upon the conversion of the Series E Preferred Stock, free from preemptive rights, such number of its authorized but unissued shares of Class A Stock as will from time to time be sufficient to permit the contrary contained hereinconversion of all outstanding shares of Series E Preferred Stock, if on any Conversion Date:
(1) and shall take all action required to increase the authorized number of shares of Common each class of Class A Stock if at any time there shall be insufficient authorized unissued shares of Class A Stock to permit such reservation or to permit the conversion of all outstanding shares of Series E Preferred Stock.
4.4 If any shares of Class A Stock that would be issuable upon conversion pursuant to this Section 4 require registration with or approval of any Governmental Authority before such shares may be issued upon conversion, the Issuer will as expeditiously as possible cause such shares to be duly registered or approved, as the case may be. The Issuer will use commercially reasonable efforts to list the shares of Class A Stock required to be delivered upon conversion of shares of Series E Preferred Stock prior to such delivery upon the principal national securities exchange or association, if any, upon which the outstanding Class A Stock is listed at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingdelivery.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Agreement and Plan of Restructuring and Merger (Liberty Media Corp /De/), Agreement and Plan of Restructuring and Merger (Unitedglobalcom Inc)
Conversion. On or after the date hereof, and prior to the maturity of the Convertible Notes or, if sooner, the Call Date (A) This Debenture as hereinafter defined), the holder of a Convertible Note shall be convertible into shares of Common Stock have the right, at the option of such holder (whether or not payment upon the HolderConvertible Notes is prohibited by the subordination provisions of Article 5) to convert, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth terms and provisions of this Article 11, all or, subject to the proviso contained in this Section 4(a)(ii) hereof). The 11.1, any portion of the Convertible Notes held by such holder into the number of shares of Common Stock issuable upon a conversion hereunder fully paid and nonassessable Shares as shall be determined by adding equal to the sum of (i) the quotient obtained by dividing (x) the outstanding aggregate principal amount of this Debenture to be Convertible Notes then being converted and (y) divided by the Conversion Price (then in effect, by delivery of the Convertible Notes to the Company at the office of the Company provided for in Section 8.2 herein; provided, however, that no holder of a Convertible Note shall be permitted to exercise its rights with respect to partial conversions as defined herein), and (ii) the amount equal herein described unless each such holder of a Convertible Note elects to (I) the product convert a minimum of (x) the outstanding at least $500,000 principal amount of this Debenture to be converted and (y) the product its Convertible Note or any additional amounts in multiples of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such $250,000 principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, of Convertible Notes; provided, further, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender issue any fractional shares in connection with any conversion pursuant to this Debenture Article 11. In the event that any Purchaser shall exercise the Convertible Notes held by it with respect to less than the entire aggregate principal amount outstanding of such Convertible Notes held by such Purchaser, the Company shall, or shall direct its transfer agent to, issue to such Purchaser certificates for the Shares of Common Stock for which such Convertible Note is being exercised in order such denominations as are required for delivery to effect conversions. Subject such Purchaser, and the Company shall, or shall direct its transfer agent to, thereupon deliver such certificates to Section 4(b)or in accordance with the instructions of such Purchaser, each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing issue to such Purchaser a new Convertible Note, duly executed by the Company, in form and substance identical to the Convertible Note surrendered by such Purchaser, for the balance of the aggregate principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorConvertible Notes that have not been so converted.
Appears in 2 contracts
Sources: Convertible Subordinated Note Purchase Agreement (Langer Inc), Convertible Subordinated Note Purchase Agreement (Langer Partners LLC)
Conversion. (A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant Subject to the terms hereofand conditions of this Agreement, subsection (ii) the Investors shall not be used have the right to convert principal of their Convertible Loans into overseas shares of Cayman Co or equity interest in the calculation of Target Company based on the number of shares of Common Stock issuable upon a corresponding appraised value, in particular:
1.7.1 Investor 1 Note I conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:and Investor 2 conversion
(1) On the number of shares of Common Stock at fifth (5th) day immediately after the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient following conditions precedent (the “Offshore Automatic Conversion Conditions”) applicable to pay interest hereunder in shares of Common Stock;
an Investor (the condition precedent (c) below not applicable to Investor 2) are fully satisfied or waived by such Investor in writing (the Underlying Shares issuable for such conversion conditions precedent (including any interest payable a) to (c) below applicable with respect to Investor 1; and the conditions precedent (a) to (b) below applicable with respect to Investor 2) and the Offshore Automatic Conversion Conditions are waived jointly by the Investor and the Target Company (applicable to the condition precedent set out in shares(d) (xbelow) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
any such other date as the Investor and the Target Company agree upon in writing (4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii“Automatic Conversion Date”), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of Investor 1 Note equivalent to thirty million Chinese yuan (RMB30,000,000) (the Debentures “Investor 1 Note I”) shall be automatically converted into the corresponding number of series B+ preferred shares of Cayman Co (the “Overseas Shares I of Investor 1”) on basis that then fully-diluted pre-money valuation of Cayman Co is RMB900,000,000 (“Pre-money Valuation of Investor 1 Conversion I”, and for the avoidance of doubt, the calculation of such fully-diluted pre-money valuation shall include the incentive shares/options (including the First Tranche Reserved Incentive Shares (as defined below), but for the avoidance of doubt, excluding the Reserved Incentive Shares II (as defined below)) reserved, issued and enlarged by Cayman Co under the Restructuring Framework Agreement, and ordinary shares issued by Cayman Co to be converted on such Conversion Date the Founders or their wholly-owned holding entity or trust established by them); and (b) the product of (x) Investor 2 Note shall be automatically converted into the quotient obtained by dividing .12 by 360 and (y) the corresponding number of series B+ preferred shares of Cayman Co (the “Overseas Shares of Investor 2”, together with Overseas Shares I of Investor 1, collectively the “First Tranche Overseas Shares”; and the corresponding conversions collectively referred to as the “Offshore Automatic Conversion” ) on basis that the then fully-diluted pre-money valuation of Cayman Co is RMB1,000,000,000 (for the avoidance of doubt, the calculation of such fully-diluted pre-money valuation shall include the incentive shares/options (including the First Tranche Reserved Incentive Shares (as defined below), but for the avoidance of doubt, excluding the Reserved Incentive Shares II (as defined below)) reserved, issued and enlarged by Cayman Co under the Restructuring Framework Agreement, and ordinary shares issued by Cayman Co to the Founders or their wholly-owned holding entity or trust established by them). Cayman Co shall issue the First Tranche Overseas Shares to the aforementioned Investors (or their designated affiliates) on the Automatic Conversion Date, and shall provide those Investors with a scanned copy of the register of members, which shall specify such Investors (or their designated affiliates) as the holders of the corresponding First Tranche Overseas Shares and shall be certified by the registered office provider of Cayman Co, and shall also provide a scanned copy of the share certificate duly executed and affixed with the common seal of Cayman Co (the original share certificate shall be provided to the aforementioned Investors within fifteen (15) days after the Automatic Conversion Date):
(a) pursuant to the Restructuring Framework Agreement, the Group has completed the Red Chip Restructuring and Cayman Co has completed the reservation of 150,000,000 ordinary shares (corresponding to the equity interest in the Target Company held in China by X-Charge Management as of the execution date of this Agreement, which, together with the Reserved Incentive Shares I (as defined below), are referred to as the “First Tranche Reserved Incentive Shares”); and no circumstance specified in paragraph 5.4.3 hereof occur;
(b) Cayman Co, all of its then shareholders (including all existing shareholders of the Target Company other than X-Charge Management or its designated overseas affiliates), the Investors (or their designated affiliates), and the Offshore Investors (or their designated affiliates) have executed the Amended and Restated Investors' Rights Agreement of Cayman Co and the general meeting of Cayman Co has duly resolved to pass the Amended and Restated Memorandum and Articles, provided that these two documents shall reflect that the shareholders’ rights are substantially identical to the rights of the Investors in the Target Company under the Transition Agreement (including the rights of the Convertible Loan Investor and rights of shareholders (if applicable)), and shall include the shareholders’ rights such as registration right and conversion right which are customary for overseas entities, and these two documents have been provided to the Investors;
(c) with respect to Investor 1, a scanned copy of the register of members of Cayman Co as certified by the registered office provider of Cayman Co have been submitted to Investor 1, which shall show that one (1) director nominated by Investor 1 (or its designated affiliate) has been appointed as a director of Cayman Co, and Cayman Co has executed the director indemnification agreement to be signed by Cayman Co, Investor 1 (or its designated affiliate) and the director appointed by Investor 1 (or its designated affiliate), and such principal amount was outstandingdocuments have been provided to Investor 1; and
(d) with respect to each Investor, the Investor has completed the ODI formalities in relation to its subscription for the corresponding First Tranche Overseas Shares in accordance with applicable laws, unless the Investor designates its affiliate to subscribe for the corresponding First Tranche Overseas Shares and such affiliate has completed all the required formalities in accordance with applicable laws (if any) in relation to its subscription for such First Tranche Overseas Shares.
(C2) This Debenture In the event that (a) the Group Company has completed the Red Chip Restructuring, but the Offshore Automatic Conversion Conditions are not fully satisfied prior to the expiry of the Convertible Loan Term due to the failure of Cayman Co or the Target Company to fulfill conditions set forth in points (a) to (c) of paragraph 1.7.1 (1) hereof (if applicable), and such Offshore Automatic Conversion Conditions have not been waived by the Investor in writing; or (b) the Group has not completed the Red Chip Restructuring prior to the expiry of the Convertible Loan Term, then: (i) Investor 1 has the right (but is not obliged) to request to convert the outstanding principal of Investor 1 Note I into equity in the Target Company on the basis that the pre-money valuation of Investor 1 Conversion I represents the pre-money valuation of the Target Company (the “Investor 1 Onshore Conversion I”), (ii) Investor 2 shall have the right (but not be obliged) to request to convert the outstanding principal of Investor 2 Note into equity in the Target Company on basis that the pre-money valuation of the Target Company is RMB 1,000,000,000 (the “Investor 2 Onshore Conversion”, together with Investor 1 Onshore Conversion I, collectively the “First Tranche Onshore Conversion”), and the Target Company shall register such Investor as a shareholder with respect to the aforesaid equity interest in its register of members on the date of receipt of such notice, cause the relevant documents such as the shareholders’ agreement and articles of association of the Target Company to be amended to reflect the foregoing arrangements, and shall, within thirty (30) business days thereafter, complete the registration and filing formalities with its competent company registration authority in connection with the aforementioned onshore conversion and the appointment of a directors by Investor 1.
(3) For the avoidance of doubt, if, prior to the occurrence of an Offshore Automatic Conversion, the conversion unit price of the Convertible Loan to which the First Tranche Onshore Conversion is related is changed to the adjusted unit price of the investment contemplated hereunder pursuant to paragraph 5.8.3 of the Transition Agreement, the conversion unit price for the Offshore Automatic Conversion shall be convertible adjusted accordingly pursuant to Article 5.8 of the Transition Agreement so that the corresponding Investors are entitled to anti-dilution protection at Cayman Co level substantially identical to that at the Target Company level.
1.7.2 Investor 1 Note II conversion
(1) Within fifteen (15) business days after all of the following conditions (the “Offshore Optional Conversion Conditions”) are satisfied or waived by Investor 1 in writing (applicable to the conditions precedent (a) to (b) below) and jointly waived by Investor 1 and the Target Company (applicable to the condition precedent (c) below) (or such later period as Investor 1 and the Target Company shall then otherwise agree) (the “Offshore Optional Conversion Time Limit”), Investor 1 has the right (but is not the obliged) to give a written notice to Cayman Co (the “Offshore Optional Conversion Notice”) requiring the conversion of the remaining notes (corresponding to the principal amount of the Convertible Loan of twenty million Chinese yuan (RMB 20,000,000), the “Investor 1 Note II”) into a corresponding number of series B + preference shares of Common Stock Cayman Co at the option conversion unit price of the HolderOverseas Share II of Investor 1. Notwithstanding the foregoing, if, prior to the occurrence of the Offshore Optional Conversion, a new round of financing occurs to Cayman Co, in whole which the unit price per additional share is lower than the conversion unit price of the Overseas Share II of Investor 1 calculated on basis that the consolidated pre-money valuation (see the calculation formula below) is equal to RMB1 billion (except for the Red Chip Restructuring as agreed under the Restructuring Framework Agreement and the conversion following provision of loan by the Offshore Co-investors to the Group Company under this Agreement and the Offshore Co-investor Note Agreement, the “New Financing of Cayman Co”), Investor 1 has the right to request converting Investor 1 Note II into the corresponding number of the preferred share class issued under the New Financing of Cayman Co whenever Investor 1 conducts the Offshore Optional Conversion at the conversion unit price of the Overseas Share II of Investor 1 defined in the point (b) of paragraph 1.7.2(2) in accordance with paragraph 1.7.2(2) (the aforesaid conversion shares referred to as “Overseas Share II of Investor 1”, and together with the First Tranche Overseas Shares, collectively or individually “Overseas Share”; and these conversions referred to as “Offshore Optional Conversion”, and together with Offshore Automatic Conversion, collectively or individually “Offshore Conversion”):
(a) Offshore Automatic Conversion has occurred, and Investor 1 (or its designated affiliate) has been registered as the holder of the relevant First Tranche Overseas Shares in part at any time the register of members of Cayman Co;
(b) The Group has submitted to the Investor the consolidated financial statements of the Group for the one (1) month immediately before the date of automatic conversion and the key operation data of the Group as set out in Exhibit V. If there is a material adjustment to the Principal Business of the Group, Investor 1 shall have the right to request the Group to update the key operation data set out in Exhibit V from time to time; and
(c) Investor 1 has completed the ODI formalities in relation to its subscription for Overseas Shares II of Investor 1 in accordance with the applicable laws, after unless Investor 1 designates its affiliate recognized by the Original Issue Date Target Company to subscribe for Overseas Shares II of Investor 1 and such affiliate has completed all required formalities (subject to if any) for such subscription in accordance with applicable laws.
(2) For the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount purposes of this Debenture and all accrued and unpaid interest thereon subsequent to Agreement, the “Conversion Unit Price of Overseas Shares II of Investor 1” means: (a) the conversion at issue. The date on which unit price per Overseas Shares II of Investor 1 that is such calculated that the consolidated pre-money valuation under two investments made by Investor 1 constituting the Offshore Automatic Conversion and Offshore Optional Conversion (see calculation formula below); or (b) 90% of unit price per share under a Conversion Notice New Financing of Cayman Co if such new financing occurs prior to or concurrently with the Offshore Conversion, whichever is delivered is the "Conversion Datelower." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Convertible Loan Investment Agreement (XCHG LTD), Convertible Loan Investment Agreement (XCHG LTD)
Conversion. A Holder of a Debenture may, subject to the terms and conditions of Article 5 of the Indenture, convert the principal amount of such Debenture (Aor any portion thereof equal to $1,000 or any integral multiple of $1,000 in excess thereof) This Debenture shall be convertible into shares of Common Stock at any time prior to the option close of business on the Business Day immediately preceding November 15, 2023 under the circumstances described in Article 5 of the HolderIndenture. On conversion of a Debenture, that portion of accrued and unpaid interest, including Contingent Interest, if any, on the converted Debenture attributable to the period from the most recent Interest Payment Date (or, if no Interest Payment Date has occurred, from November 10, 2003) through the date of conversion, and Tax Original Issue Discount accrued through the date of conversion with respect to the converted Debenture shall not be cancelled, extinguished or forfeited, but rather shall be deemed to be paid in full to the Holder thereof through delivery of the Common Stock (together with the Cash payment, if any, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number lieu of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined hereinfractional shares), and (ii) in exchange for the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be being converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms provisions hereof, subsection (ii) shall not be used in and the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance fair market value of such shares of Common Stock would result (together with any such Cash payment in a violation lieu of Sections 4(a)(iifractional shares) shall be treated as issued, to the extent thereof, first in exchange for accrued and unpaid interest (including Contingent Interest, if any), thenand Tax Original Issue Discount accrued through the date of conversion and the balance, if any, of such fair market value of such Common Stock (and any such Cash payment) shall be treated as issued in exchange for the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures Debenture being converted pursuant to be converted on such Conversion Date the provisions hereof. The Company agrees, and (b) the product each Holder and any beneficial owner of (x) the quotient obtained a Debenture by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture its purchase or acceptance thereof shall be convertible into shares deemed to agree, to treat, for United States federal income tax purposes, the fair market value of the Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to received upon the conversion at issue. The date of a Debenture (together with any Cash payment in lieu of fractional shares) as a contingent payment on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to for purposes of Treasury Regulation Section 1.1275-4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Conversion. (Aa) This Debenture Subject to Section D(4)(b) of this Article 3, each share of Non-Voting Common Stock shall be convertible converted into one share of Common Stock (i) automatically, upon the permitted Transfer (as hereinafter defined) of such share of Non-Voting Common Stock, or (ii) at the election of the holder of such share of Non-Voting Common Stock. Each conversion of shares of Non-Voting Common Stock into shares of Common Stock at shall be effected by the option surrender of the Holdercertificate(s) evidencing book entry on the books and records of the Corporation’s transfer agent.
(b) Notwithstanding Section D(4)(a) of this Article 3, no share of Non-Voting Common Stock shall be converted into Common Stock if, as a result of such conversion, the holder of such share of Common Stock would (or would be deemed to), directly or indirectly, own, control or have power to vote more than 9.9% of any class of the Corporation’s voting securities. If the Board of Directors of the Corporation determines in whole or in part at any time good faith, which determination shall be final and from time to time, after the Original Issue Date binding:
(subject i) prior to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number issuance of shares of Common Stock issuable upon a on conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Non-Voting Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) that the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), thenthe ownership limitation contained in this Section (D)(4)(b) of this Article 3, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days Board of each applicable Conversion Date, an amount in cash equal Directors shall be entitled to the product of (a) the outstanding principal amount of the Debentures refuse to be converted issue on such Conversion Date and (b) conversion the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at that would cause the option violation of such ownership limitation; and
(ii) after the issuance of shares of Common Stock on conversion of Non-Voting Common Stock that the issuance of such shares of Common Stock has resulted in a violation of the Holderownership limitation contained in this Section (D)(4)(b) of this Article 3, in whole or in part at any time and from time to time, after the Original Issue Date (subject Board of Director of the Corporation shall rescind such conversion to the limitations extent it caused such violation, cancel the shares of Common Stock issued on conversion set forth that caused such violation and re-issue in respect of such canceled shares of Common Stock the shares of Non-Voting Common Stock that were canceled on conversion.
(c) At least 15 calendar days before the record date for the annual meeting of holders of Common Stock, the Corporation shall provide to holders of Non-Voting Common Stock the total number of shares of the Corporation’s voting securities issued and outstanding as of a recent date.
(d) Upon the issuance of the shares of Common Stock converted in accordance with this Section 4(a)(iiD(4) hereof)of this Article 3, such shares shall be deemed to be duly authorized, validly issued, fully paid and nonassessable, and shall be free and clear of all liens, claims, security interests, charges and other encumbrances other than restrictions on transfer arising under federal and state securities laws. When shares of Non-Voting Common Stock have been converted in accordance with this Section D(4) of this Article 3, they shall be canceled and become authorized but unissued shares of Non-Voting Common Stock.
(e) The Holder issuance of shares of Common Stock upon conversion of shares of Non-Voting Common Stock shall effect conversions by delivering be made without charge to the Company a completed notice substantially holders of such shares for any issue tax in respect thereof or other cost incurred by the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this DebentureCorporation in connection with such conversion; provided, however, the Holder is Corporation shall not be required to physically surrender pay any tax that may be payable in respect of any transfer involved in the issuance of shares of Common Stock to a person other than the holder of the Non-Voting Common Stock converted.
(f) As used in this Debenture to Section D(4) of this Article 3, the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder following terms shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal meaning ascribed to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.them below:
Appears in 2 contracts
Sources: Investment Agreement (WashingtonFirst Bankshares, Inc.), Investment Agreement (WashingtonFirst Bankshares, Inc.)
Conversion. (Aa) This Debenture The Holder shall be convertible into shares of Common Stock have the right at any time prior to the option of the Holder, Maturity Date or a Prepayment Date to convert in whole or in part at any time the unpaid principal of this Note, and from time to timeaccrued and unpaid interest thereon, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The into such number of fully-paid and nonassessable shares of Common Stock issuable upon a conversion hereunder shall be as is determined by adding dividing the sum of (i) the quotient obtained by dividing (x) the outstanding principal aggregate amount of this Debenture principal and interest to be converted and by the conversion price in effect on the date this Note is surrendered for conversion (y) the "Conversion Price (as defined hereinPrice"); provided, and (ii) that, following any Prepayment Date, a Holder shall continue to have the amount equal right to (I) the product of (x) the outstanding convert any principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstandingNote that remains unpaid, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all together with accrued and unpaid interest thereon subsequent to the conversion at issuethereon. The date on which a initial Conversion Notice is delivered is the "Price shall be $2.75 per share of Common Stock. Such initial Conversion DatePrice shall be subject to adjustment as set forth in Paragraph 4." Unless the
(b) The Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to shall notify the Company in order of its intention to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount convert all or a portion of this Debenture plus all accrued and unpaid interest thereon in an amount equal Note pursuant to the applicable conversion, which shall be evidenced by notations made in the Conversion Noticethis Paragraph 3.
1. The Holder and the Company shall maintain records showing the principal amount converted and Within five (5) Business Days after the date of such conversions. In notice of intention, the event Company shall deliver to the Holder a certificate, signed by the Company's Chief Executive Officer and Chief Financial Officer, to the effect that: (i) since the end of the Company's most recently completed fiscal year, there has been no material adverse change in the business, assets, properties, liabilities, condition (financial or otherwise) or results of operations of the Company or any of its subsidiaries; (ii) there is no material action, suit or proceeding, or governmental inquiry or investigation, pending, or, to the best of the Company's knowledge, threatened, against the Company or any of its subsidiaries; and (iii) neither the Company nor, to the best of the Company's knowledge, any other party thereto is in default in any material respect of any dispute of its obligations under any material agreement or discrepancycontract of the Company. If, for any reason, the records Company is unable to certify as to any of the above matters, it shall so notify the Holder, and shall deliver a certificate as to the remaining matters, within such five (5) Business Day period. The delivery of any certificate by the Company to the Holder pursuant to this Paragraph 3.1(b) shall be controlling and determinative in not obligate the absence of manifest errorHolder to convert this Note.
Appears in 2 contracts
Sources: Senior Convertible Promissory Note (Celgene Corp /De/), Senior Convertible Promissory Note (Pharmion Corp)
Conversion. (i) Conversion at Option of Holder. ----------------------------------
(A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (as defined in Section 4) (subject to the limitations on conversion set forth in Section 4(a)(ii3(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) equals the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and by (y) the Conversion Price (as defined hereinin Section 3(c)(i), and ). The Obligor shall deliver Common Stock certificates to the Holder prior to the Fifth (ii5th) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Trading Day after a Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
: (1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay principal and interest hereunder in shares of Common Stock;
; (2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
; (43) the Company Obligor has failed to timely satisfy its conversion obligations hereunderconversion; or
or (54) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(iiSection 3(a)(ii), then, at the Company may not pay interest option of the Holder, the Obligor, in kind and must pay interest in cash by deliveringlieu of delivering shares of Common Stock pursuant to Section 3(a)(i)(A), shall deliver, within three (3) Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted plus any interest due therein divided by the Conversion Price and multiplied by the highest closing price of the stock from date of the conversion notice till the date that such cash payment is made. Further, if the Obligor shall not have delivered any cash due in respect of conversion of this Debenture or as payment of interest thereon by the fifth (5th) Trading Day after the Conversion Date, the Holder may, by notice to the Obligor, require the Obligor to issue shares of Common Stock pursuant to Section 3(c), except that for such purpose the Conversion Price applicable thereto shall be the lesser of the Conversion Price on such the Conversion Date and (b) the product Conversion Price on the date of (x) such Holder demand. Any such shares will be subject to the quotient obtained by dividing .12 by 360 and (y) the number provisions of days for which such principal amount was outstandingthis Section.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company Obligor a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion ---------- Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal ---------------- amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company Obligor in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company Obligor shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Debenture Agreement (Ns8 Corp), Debenture Agreement (Ns8 Corp)
Conversion. 3.1 This Note, along with all accrued and unpaid interest, will be converted into Conversion Shares on the date (Athe “Conversion Date”) This Debenture shall be convertible into shares that the Company’s registration statement on Form S-1 filed in connection with the proposed acquisition of Common Stock at Virurl Inc. as set out in Letter of Intent dated April , 2014 (the option “Letter of Intent”), is declared effective by the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). Securities Exchange Commission.
3.2 The number of shares of Common Stock Conversion Shares issuable upon a conversion hereunder of the Principal Amount under this Note shall be determined by adding the sum of (i) the quotient obtained by dividing (x) by (y) where (x) is equal to the Principal Amount and (y) is the Conversion Price (as hereinafter defined).
3.3 The number of Conversion Shares issuable upon a conversion of any accrued and outstanding principal interest on this Note (the “Accrued Interest”) shall be determined by the quotient obtained by dividing (x) by (y) where (x) is equal to the amount of this Debenture Accrued Interest to be converted and (y) is the Conversion Price.
3.4 Not later than five Trading Days after any Conversion Date, the Company will deliver to the Holder a certificate or certificates representing the Conversion Shares (bearing such legends as may be required by applicable law and those required by the Subscription Agreement) representing the aggregate number of Conversion Shares being acquired.
3.5 The conversion price (the “Conversion Price”) in effect on the Conversion Date shall be equal to $0.125 per share.
3.6 The Company covenants that it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock such number of shares as is necessary in order to ensure that a sufficient number are available for the purpose of issuance of Conversion Shares upon conversion of this Note, free from pre-emptive rights or any other actual contingent purchase rights of Persons other than the Holder. The Company covenants that all Conversion Shares shall, upon issue, be duly and validly authorized, issued and fully paid and non-assessable.
3.7 Upon a conversion hereunder, the Company shall not be required to issue stock certificates representing fractions of any Conversion Shares, and the number of Conversion Shares shall be rounded down to the nearest whole number.
3.8 If the Company, at any time while this Note is outstanding: (A) pays a stock dividend or otherwise makes a distribution or distributions in shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock, (B) subdivides outstanding shares of Common Stock into a larger number of shares, (C) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (D) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then the Conversion Price (as defined herein), and (ii) shall be multiplied by a fraction of which the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to numerator shall be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained hereinexcluding treasury shares, if on any Conversion Date:
(1any) outstanding before such event and of which the denominator shall be the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for outstanding after such conversion (including any interest payable in shares) (x) are not registered for resale event. Any adjustment made pursuant to an this Section shall become effective Underlying Shares Registration Statement immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and (y) may not be sold without volume restrictions pursuant shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
3.9 The Holder acknowledges and agrees that it is a condition to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and Shares that all Conversion Shares will be placed into escrow with ▇▇▇▇▇ ▇▇▇▇▇▇ LLP for a period of 12 months from the date of such conversions. In the event of any dispute or discrepancy, the records issuance of the Conversion Shares subject to a Pooling Agreement (to be negotiated by the Company and the Holder shall in good faith and acting reasonably) to be controlling entered into between the Company and determinative the Holder in connection with and as a condition to the absence issuance of manifest errorthe Conversion Shares.
Appears in 2 contracts
Sources: Private Placement Subscription Agreement (REVENUE.COM Corp), Private Placement Subscription Agreement (REVENUE.COM Corp)
Conversion. (Aa) This Debenture shall be convertible into shares of Common Stock at At the option of the Holder, at any time, subject to Section 3(e), the Debentures, in whole or in part at any time and from time to timepart, after may be converted on the Original Issue Conversion Date (subject as defined below) at the principal amount thereof, into fully paid and nonassessable shares (calculated as to each conversion to the limitations on conversion set forth nearest 1/100 of a share) of Common Stock, including the associated Rights (as defined in Section 4(a)(ii) hereofthe Debenture Purchase Agreement), at the Conversion Price (as defined below), in effect at the time of conversion. The price at which the number of shares of Common Stock issuable upon a conversion hereunder to be delivered shall be determined by adding upon conversion shall be $5.50 per share of Common Stock (the sum "Conversion Price"). The Conversion Price shall be adjusted in certain instances as provided in this Debenture, including paragraph (d) of this Section 3.
(b) If the Holder elects to convert the Debentures, the Holder shall provide written notice (the "Conversion Notice") to the Company (at the Company's address) which states that the Holder elects to convert such Debenture. In order to exchange the securities, the Holder shall surrender the Debentures, duly endorsed or assigned to the Company or in blank. Subject to Section 3(e), each conversion shall be deemed to have been effected immediately prior to the close of business on the date the Holder delivers the Conversion Notice (the "Conversion Date"). If such day is not a business day, and a day on which the principal national securities exchange or market quotation system on which the Common Stock is then listed or admitted for trading is open (a "Trading Day"), then such conversion will be deemed to have been effected on the next succeeding Trading Day. As promptly as practicable on or after the Conversion Date, the Company shall issue and deliver the certificates representing the number of full shares of Common Stock, including the associated Rights, issuable upon conversion, together with payment in lieu of any fraction of a share, as provided in Section 3(c).
(c) No fractional shares of Common Stock shall be issued upon conversion of Debentures. Instead of any fractional share of Common Stock which would otherwise be issuable upon conversion of any Debenture, the Company shall pay a cash adjustment in respect of such fraction in an amount equal to the same fraction of the market price per share of Common Stock at the close of business on the Conversion Date.
(d) The Conversion Price shall be subject to the following adjustments:
(i) If, on any Conversion Date, the quotient obtained by dividing (x) average closing price of the outstanding principal amount of this Debenture to be converted and (y) Common Stock during the twenty trading days immediately preceding the Conversion Date is less than the Conversion Price (as defined herein$5.50, before any anti-dilution adjustments pursuant to this Agreement including Section 3(d)(ii)-(vii)), and then the Conversion Price shall be reduced to such average closing price (the "Market Conversion Price"). Adjustments to the Conversion Price pursuant to this subsection (i) are referred to as "Market Adjustments"; all other adjustments to the Conversion Price provided in this Debenture are "Anti-Dilution Adjustments".
(ii) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the amount equal Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(Iiii) In case the product Company shall pay or make a dividend or other distribution on any class of (x) capital stock of the outstanding principal amount Company in Common Stock, the Conversion Price in effect at the opening of this Debenture business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be converted and (y) reduced by multiplying such Conversion Price by a fraction of which the product of (1) the quotient obtained by dividing .12 by 360 and (2) numerator shall be the number of days shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination.
(iv) In case the Company shall issue rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the Conversion Price, the Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such rights or warrants shall be adjusted to such subscription or purchase price, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination.
(v) In case the Company shall issue Common Stock (other than shares of Common Stock issued upon exercise of rights, options and warrants outstanding as of the date hereof), or rights, options or warrants convertible into, or exchangeable or exercisable for, Common Stock to any third party, or shall reprice or adjust the conversion, exchange or exercise price of rights, options or warrants outstanding as of the date hereof, at or to a price per share of Common Stock less than the Conversion Price, the Conversion Price in effect at the opening of business on the day following the date of such issuance, repricing or adjustment shall be adjusted to such issue, conversion, exchange or exercise price or, in the case of a repricing or adjustment, such conversion, exchange or exercise price as so adjusted, such reduction to become effective immediately after the opening of business on the day following the date of such issuance, repricing or adjustment, as the case may be, provided, no such adjustment shall be made with respect to: (A) up to 3,833,333 shares of Common Stock to be issued for $3 per share in connection with CHS's acquisition of SIS Distribution Ltd.; (B) up to 2,653,000 shares of Common Stock to be issued for $3 per share in connection with CHS's acquisition of Micro Informatica Corp.; or (C) shares of Common Stock or Preferred Stock issued pursuant to the Rights Agreement.
(vi) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness or assets (including securities, but excluding any rights or warrants referred to in clause (iv) of this Section, any dividend or distribution paid in cash out of the retained earnings of the Company and any dividend or distribution referred to in clause (iii) of this Section), the Conversion Price in effect at the opening of business on the date fixed for the determination of stockholders entitled to receive such distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which such principal amount was outstanding, divided by (II) the numerator shall be the Conversion Price on the date fixed for such determination less the then fair market value of the portion of the assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such Conversion DatePrice, provided, that if the Company shall have timely elected such adjustment to pay the interest due on a Conversion Date in cash pursuant become effective immediately prior to the terms hereofopening of business on the day following the date fixed for such determination.
(vii) The reclassification of Common Stock into securities including other than Common Stock shall be deemed to involve (A) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of clause (vi) of this Section), subsection and (iiB) shall not be used in a subdivision or combination, as the calculation case may be, of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything outstanding immediately prior to the contrary contained herein, if on any Conversion Date:
(1) such reclassification into the number of shares of Common Stock at outstanding immediately thereafter (and the time authorizedeffective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", unissued as the case may be, and unreserved for all purposes, "the day upon which such subdivision or held as treasury stock, is insufficient to pay interest hereunder in shares combination becomes effective" within the meaning of Common Stock;clause (ii) of this Section).
(2e) If the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant Holder elects to an effective Underlying Shares Registration Statement convert the Debenture and (y) may not be sold without volume restrictions pursuant deliver a Conversion Notice to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its which provides for conversion obligations hereunder; or
(5) at a Conversion Price which is lower than the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii)initial Conversion Price, thenas adjusted only for Anti-Dilution Adjustments, then the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal shall have the right to redeem the product of (a) the outstanding principal amount of the Debentures Debenture intended to be converted on such Conversion Date and (b) the product 60 days after delivery of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Closing of the redemption, if any, shall occur on the sixtieth day following delivery of the Conversion Notice. During the sixty day period the Holder shall have the right at any time to rescind the Conversion Notice by written notice to the Company; and consequently such redemption shall automatically be terminated.
(f) Whenever the Conversion Price is adjusted pursuant to Section 3(d):
(i) the Company shall maintain records compute the adjusted Conversion Price and shall prepare a certificate signed by the Company setting forth the adjusted Conversion Price showing in reasonable detail the principal amount converted facts upon which such adjustment is based; and
(ii) a notice stating that the Conversion Price has been adjusted and setting forth the date of such conversions. In the event of any dispute or discrepancyadjusted Conversion Price shall forthwith be prepared, the records and as soon as practicable after it is prepared (together with a copy of the Holder certificate referred to in clause (i) above), such notice shall be controlling and determinative in mailed by the absence of manifest errorCompany to all Holders.
Appears in 2 contracts
Sources: Debenture Purchase Agreement (Computer Associates International Inc), Debenture Purchase Agreement (CHS Electronics Inc)
Conversion. (A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant Subject to the terms hereofand conditions of this Agreement, subsection (ii) the Investors shall not be used have the right to convert principal of their Convertible Notes into overseas shares of Cayman Co or equity interest in the calculation of Target Company based on the number of shares of Common Stock issuable upon a corresponding appraised value, in particular:
1.7.1 Investor 1 Note I conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:and Investor 2 conversion
(1) On the number of shares of Common Stock at fifth (5th) day immediately after the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient following conditions precedent (the “Offshore Automatic Conversion Conditions”) applicable to pay interest hereunder in shares of Common Stock;
an Investor (the condition precedent (c) below not applicable to Investor 2) are fully satisfied or waived by such Investor in writing (the Underlying Shares issuable for such conversion conditions precedent (including any interest payable a) to (c) below applicable with respect to Investor 1; and the conditions precedent (a) to (b) below applicable with respect to Investor 2) and the Offshore Automatic Conversion Conditions are waived jointly by the Investor and the Target Company (applicable to the condition precedent set out in shares(d) (xbelow) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
any such other date as the Investor and the Target Company agree upon in writing (4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii“Automatic Conversion Date”), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of Investor 1 Note equivalent to thirty million Chinese yuan (RMB30,000,000) (the Debentures “Investor 1 Note I”) shall be automatically converted into the corresponding number of series B+ preferred shares of Cayman Co (the “Overseas Shares I of Investor 1”) on basis that then fully-diluted pre-money valuation of Cayman Co is RMB900,000,000 (“Pre-money Valuation of Investor 1 Conversion I”, and for the avoidance of doubt, the calculation of such fully-diluted pre-money valuation shall include the incentive shares/options (including the First Tranche Reserved Incentive Shares (as defined below), but for the avoidance of doubt, excluding the Reserved Incentive Shares II (as defined below)) reserved, issued and enlarged by Cayman Co under the Restructuring Framework Agreement, and ordinary shares issued by Cayman Co to be converted on such Conversion Date the Founders or their wholly-owned holding entity or trust established by them); and (b) the product of (x) Investor 2 Note shall be automatically converted into the quotient obtained by dividing .12 by 360 and (y) the corresponding number of series B+ preferred shares of Cayman Co (the “Overseas Shares of Investor 2”, together with Overseas Shares I of Investor 1, collectively the “First Tranche Overseas Shares”; and the corresponding conversions collectively referred to as the “Offshore Automatic Conversion” ) on basis that the then fully-diluted pre-money valuation of Cayman Co is RMB1,000,000,000 (for the avoidance of doubt, the calculation of such fully-diluted pre-money valuation shall include the incentive shares/options (including the First Tranche Reserved Incentive Shares (as defined below), but for the avoidance of doubt, excluding the Reserved Incentive Shares II (as defined below)) reserved, issued and enlarged by Cayman Co under the Restructuring Framework Agreement, and ordinary shares issued by Cayman Co to the Founders or their wholly-owned holding entity or trust established by them). Cayman Co shall issue the First Tranche Overseas Shares to the aforementioned Investors (or their designated affiliates) on the Automatic Conversion Date, and shall provide those Investors with a scanned copy of the register of members, which shall specify such Investors (or their designated affiliates) as the holders of the corresponding First Tranche Overseas Shares and shall be certified by the registered office provider of Cayman Co, and shall also provide a scanned copy of the share certificate duly executed and affixed with the common seal of Cayman Co (the original share certificate shall be provided to the aforementioned Investors within fifteen (15) days after the Automatic Conversion Date):
(a) pursuant to the Restructuring Framework Agreement, the Group has completed the Red Chip Restructuring and Cayman Co has completed the reservation of 150,000,000 ordinary shares (corresponding to the equity interest in the Target Company held in China by X-Charge Management as of the execution date of this Agreement, which, together with the Reserved Incentive Shares I (as defined below), are referred to as the “First Tranche Reserved Incentive Shares”); and no circumstance specified in paragraph 5.4.3 hereof occur;
(b) Cayman Co, all of its then shareholders (including all existing shareholders of the Target Company other than X-Charge Management or its designated overseas affiliates), the Investors (or their designated affiliates), and the Offshore Investors (or their designated affiliates) have executed the Amended and Restated Investors' Rights Agreement of Cayman Co and the general meeting of Cayman Co has duly resolved to pass the Amended and Restated Memorandum and Articles, provided that these two documents shall reflect that the shareholders’ rights are substantially identical to the rights of the Investors in the Target Company under the Transition Agreement (including the rights of the Convertible Note Investor and rights of shareholders (if applicable)), and shall include the shareholders’ rights such as registration right and conversion right which are customary for overseas entities, and these two documents have been provided to the Investors;
(c) with respect to Investor 1, a scanned copy of the register of members of Cayman Co as certified by the registered office provider of Cayman Co have been submitted to Investor 1, which shall show that one (1) director nominated by Investor 1 (or its designated affiliate) has been appointed as a director of Cayman Co, and Cayman Co has executed the director indemnification agreement to be signed by Cayman Co, Investor 1 (or its designated affiliate) and the director appointed by Investor 1 (or its designated affiliate), and such principal amount was outstandingdocuments have been provided to Investor 1; and
(d) with respect to each Investor, the Investor has completed the ODI formalities in relation to its subscription for the corresponding First Tranche Overseas Shares in accordance with applicable laws, unless the Investor designates its affiliate to subscribe for the corresponding First Tranche Overseas Shares and such affiliate has completed all the required formalities in accordance with applicable laws (if any) in relation to its subscription for such First Tranche Overseas Shares.
(C2) This Debenture In the event that (a) the Group Company has completed the Red Chip Restructuring, but the Offshore Automatic Conversion Conditions are not fully satisfied prior to the expiry of the Convertible Note Term due to the failure of Cayman Co or the Target Company to fulfill conditions set forth in points (a) to (c) of paragraph 1.7.1 (1) hereof (if applicable), and such Offshore Automatic Conversion Conditions have not been waived by the Investor in writing; or (b) the Group has not completed the Red Chip Restructuring prior to the expiry of the Convertible Note Term, then: (i) Investor 1 has the right (but is not obliged) to request to convert the outstanding principal of Investor 1 Note I into equity in the Target Company on the basis that the pre-money valuation of Investor 1 Conversion I represents the pre-money valuation of the Target Company (the “Investor 1 Onshore Conversion I”), (ii) Investor 2 shall have the right (but not be obliged) to request to convert the outstanding principal of Investor 2 Note into equity in the Target Company on basis that the pre-money valuation of the Target Company is RMB 1,000,000,000 (the “Investor 2 Onshore Conversion”, together with Investor 1 Onshore Conversion I, collectively the “First Tranche Onshore Conversion”), and the Target Company shall register such Investor as a shareholder with respect to the aforesaid equity interest in its register of members on the date of receipt of such notice, cause the relevant documents such as the shareholders’ agreement and articles of association of the Target Company to be amended to reflect the foregoing arrangements, and shall, within thirty (30) business days thereafter, complete the registration and filing formalities with its competent company registration authority in connection with the aforementioned onshore conversion and the appointment of a directors by Investor 1.
(3) For the avoidance of doubt, if, prior to the occurrence of an Offshore Automatic Conversion, the conversion unit price of the Convertible Note to which the First Tranche Onshore Conversion is related is changed to the adjusted unit price of the investment contemplated hereunder pursuant to paragraph 5.8.3 of the Transition Agreement, the conversion unit price for the Offshore Automatic Conversion shall be convertible adjusted accordingly pursuant to Article 5.8 of the Transition Agreement so that the corresponding Investors are entitled to anti-dilution protection at Cayman Co level substantially identical to that at the Target Company level.
1.7.2 Investor 1 Note II conversion
(1) Within fifteen (15) business days after all of the following conditions (the “Offshore Optional Conversion Conditions”) are satisfied or waived by Investor 1 in writing (applicable to the conditions precedent (a) to (b) below) and jointly waived by Investor 1 and the Target Company (applicable to the condition precedent (c) below) (or such later period as Investor 1 and the Target Company shall then otherwise agree) (the “Offshore Optional Conversion Time Limit”), Investor 1 has the right (but is not the obliged) to give a written notice to Cayman Co (the “Offshore Optional Conversion Notice”) requiring the conversion of the remaining notes (corresponding to the principal amount of the Convertible Note of twenty million Chinese yuan (RMB 20,000,000), the “Investor 1 Note II”) into a corresponding number of series B + preference shares of Common Stock Cayman Co at the option conversion unit price of the HolderOverseas Share II of Investor 1. Notwithstanding the foregoing, if, prior to the occurrence of the Offshore Optional Conversion, a new round of financing occurs to Cayman Co, in whole which the unit price per additional share is lower than the conversion unit price of the Overseas Share II of Investor 1 calculated on basis that the consolidated pre-money valuation (see the calculation formula below) is equal to RMB1 billion (except for the Red Chip Restructuring as agreed under the Restructuring Framework Agreement and the conversion following provision of note loan by the Offshore Co-investors to the Group Company under this Agreement and the Offshore Co-investor Note Agreement, the “New Financing of Cayman Co”), Investor 1 has the right to request converting Investor 1 Note II into the corresponding number of the preferred share class issued under the New Financing of Cayman Co whenever Investor 1 conducts the Offshore Optional Conversion at the conversion unit price of the Overseas Share II of Investor 1 defined in the point (b) of paragraph 1.7.2(2) in accordance with paragraph 1.7.2(2) (the aforesaid conversion shares referred to as “Overseas Share II of Investor 1”, and together with the First Tranche Overseas Shares, collectively or individually “Overseas Share”; and these conversions referred to as “Offshore Optional Conversion”, and together with Offshore Automatic Conversion, collectively or individually “Offshore Conversion”):
(a) Offshore Automatic Conversion has occurred, and Investor 1 (or its designated affiliate) has been registered as the holder of the relevant First Tranche Overseas Shares in part at any time the register of members of Cayman Co;
(b) The Group has submitted to the Investor the consolidated financial statements of the Group for the one (1) month immediately before the date of automatic conversion and the key operation data of the Group as set out in Exhibit V. If there is a material adjustment to the Principal Business of the Group, Investor 1 shall have the right to request the Group to update the key operation data set out in Exhibit V from time to time; and
(c) Investor 1 has completed the ODI formalities in relation to its subscription for Overseas Shares II of Investor 1 in accordance with the applicable laws, after unless Investor 1 designates its affiliate recognized by the Original Issue Date Target Company to subscribe for Overseas Shares II of Investor 1 and such affiliate has completed all required formalities (subject to if any) for such subscription in accordance with applicable laws.
(2) For the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount purposes of this Debenture and all accrued and unpaid interest thereon subsequent to Agreement, the “Conversion Unit Price of Overseas Shares II of Investor 1” means: (a) the conversion at issue. The date on which unit price per Overseas Shares II of Investor 1 that is such calculated that the consolidated pre-money valuation under two investments made by Investor 1 constituting the Offshore Automatic Conversion and Offshore Optional Conversion (see calculation formula below); or (b) 90% of unit price per share under a Conversion Notice New Financing of Cayman Co if such new financing occurs prior to or concurrently with the Offshore Conversion, whichever is delivered is the "Conversion Datelower." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Convertible Note Investment Agreement (XCHG LTD), Convertible Note Investment Agreement (XCHG LTD)
Conversion. (Aa) Conversion at Option of Holder. ----------------------------------
(i) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (as defined in Section 5) (subject to the limitations on conversion set forth in Section 4(a)(ii3(b) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) equals the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and by (y) the Conversion Price (as defined hereinin Section 3(c)(i), and ). The Obligor shall deliver Common Stock certificates to the Holder prior to the Fifth (ii5th) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Trading Day after a Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(Bii) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
: (1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay principal and interest hereunder in shares of Common Stock;
; (2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
; (43) the Company Obligor has failed to timely satisfy its conversion obligations hereunderconversion; or
or (54) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(iiSection 3(b), then, at the Company may not pay interest option of the Holder, the Obligor, in kind and must pay interest in cash by deliveringlieu of delivering shares of Common Stock pursuant to Section 3(a)(i), shall deliver, within three (3) Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on plus any interest due therein divided by the Conversion Price, chosen by the Holder, and multiplied by the highest closing price of the stock from date of the conversion notice till the date that such cash payment is made. Further, if the Obligor shall not have delivered any cash due in respect of conversion of this Debenture or as payment of interest thereon by the fifth (5th) Trading Day after the Conversion Date and (b) Date, the product of (x) Holder may, by notice to the quotient obtained by dividing .12 by 360 and (y) Obligor, require the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into Obligor to issue shares of Common Stock at pursuant to Section 3(c), except that for such purpose the option Conversion Price applicable thereto shall be the lesser of the Holder, in whole or in part at any time Conversion Price on the Conversion Date and from time to time, after the Original Issue Date (Conversion Price on the date of such Holder demand. Any such shares will be subject to the limitations on conversion set forth in Section 4(a)(iiprovisions of this Section.
(iii) hereof). The Holder shall effect conversions by delivering to the Company Obligor a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company Obligor in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company Obligor shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Debenture Agreement (Americana Publishing Inc), Debenture Agreement (Americana Publishing Inc)
Conversion. (A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) If a Change of Control occurs or a Qualified Initial Public Offering occurs prior to repayment of this Note in full, then Investor has the quotient obtained by dividing (x) right, at Investor’s option, to convert the outstanding principal amount of this Debenture Note and all accrued and unpaid interest on this Note immediately prior to be converted the closing of such Change of Control or Qualified Initial Public Offering into fully paid and (y) nonassessable shares of the Company’s Common Stock at a price per share equal to the Conversion Price (as defined herein), and Price.
(ii) If the amount equal Company shall have delivered a Prepayment Notice, then the Investor has the right, at Investor’s option, to (I) the product of (x) convert the outstanding principal amount of this Debenture Note to be converted prepaid and (y) all accrued and unpaid interest thereon immediately prior to the product scheduled prepayment date into fully paid and nonassessable shares of (1) the quotient obtained by dividing .12 by 360 and (2) Company’s Common Stock at a price per share equal to the number conversion price of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if series of preferred stock of the Company shall have timely elected to pay (other than Series A Preferred Stock) first issued by the interest due on a Conversion Date in cash pursuant Company subsequent to the terms hereof, subsection Initial Closing (as defined in the Purchase Agreement) or (ii) if no such shares shall have been issued, the fair market value per share of the Company’s Common Stock, as determined by the Board of Directors of the Company (the “Board”) in good faith (such determination of the fair market value of the Common Stock shall be not be used in based on any valuation report prepared for purposes of valuing Common Stock as provided under Section 409A of the calculation Internal Revenue Code of 1986, as amended, and the regulations and guidance thereunder (“Section 409A”); furthermore, any such valuation shall be based on a methodology for determination of the fair market value of the Common Stock which assumes that the number of shares of Common Stock issuable upon a outstanding includes the conversion hereunder.
of all outstanding securities convertible into or exchangeable for Common Stock on an as-converted (B) Notwithstanding anything including, but not limited to, the preferred stock and any convertible debt instruments of the Company)); provided, however, that if the Investor disputes the Board’s determination of fair market value of the Company’s Common Stock, the Investor shall be entitled to have the fair market value of the Company’s Common Stock determined by an independent appraiser selected by the Investor and reasonably acceptable to the contrary contained herein, if Company (such determination of the fair market value of the Common Stock shall be not be based on any Conversion Date:
(1) valuation report prepared for purposes of valuing Common Stock as provided under Section 409A; furthermore, any such valuation shall be based on a methodology for determination of the fair market value of the Common Stock which assumes that the number of shares of Common Stock at outstanding includes the time authorized, unissued and unreserved conversion of all outstanding securities convertible into or exchangeable for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is on an as-converted (including, but not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), thenlimited to, the Company may not pay interest in kind preferred stock and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount any convertible debt instruments of the Debentures to be converted on such Conversion Date and (b) the product Company)). All costs of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in appraisal under this Section 4(a)(ii) hereof). The Holder shall effect conversions be paid equally by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorInvestor.
Appears in 2 contracts
Sources: Convertible Note (Arista Networks, Inc.), Note Agreement (Arista Networks, Inc.)
Conversion. (AThe conversion price for any conversion pursuant to Section 2.7(a) This Debenture shall be convertible the lowest nominal or effective price per share paid by the Other Investors who purchase such Convertible Preferred Stock (with the exception of shares issuable upon exercise of the Bridge Warrants). The conversion price for any conversion into any Equity or Debt Security pursuant to Section 2.7(b) shall be the lowest of (i) the lowest nominal or effective price per share paid by any investor at any time on or after the date one year prior to the execution of this Agreement (with the exception of (x) purchases of up to 35,000 shares of the Company's Common Stock, $0.001 par value ("COMMON STOCK") pursuant to certain options to purchase, at a purchase price of $0.0001, that were outstanding on the Effective Date of this Agreement and held by members of the Board of Directors, as set forth in Schedule 2.7(d), and (y) shares issuable upon the exercise of the Bridge Warrants, each of which shall be excluded from consideration under this section), (ii) the lowest nominal or effective price at which any investor is entitled to acquire shares (including, without limitation, through purchase, exchange, conversion or exercise) pursuant to any other security, instrument, or promise, undertaking, commitment, agreement or letter of intent of the Company outstanding on or after the Effective Date of this Agreement or granted, issued, extended or otherwise made available by the Company at any time on or after the date one year prior to the Effective Date of this Agreement (regardless of whether currently exercisable or convertible) (with the exception of (x) certain options to purchase up to 35,000 shares of Common Stock at a purchase price of $0.0001 that were outstanding on the option Effective Date of this Agreement and held by members of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion Board of Directors as set forth in Section 4(a)(ii) hereofSchedule 2.7(d). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted , and (y) the Conversion Price Bridge Warrants, each of which shall be excluded from consideration under this section); and (as defined hereiniii) the lesser of $0.10 per share or 35% discount to the average closing price per share of the Common Stock during any twenty consecutive trading days (beginning with the twenty consecutive trading days prior to the date of execution of this Agreement); provided, and however, that in no event shall the price per share calculated pursuant to this clause (iii) be less than $.04 per share. The calculation required by clause (ii) the amount equal to (Ihereof shall initially be based upon Schedule 2.7(d) the product of (x) the outstanding principal amount of this Debenture to be converted hereto. All other rights, preferences, privileges, terms and (y) the product of (1) the quotient obtained conditions received by dividing .12 Investor in connection with any conversion and/or any securities issued by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company to Investor upon conversion, shall have timely elected be no less favorable to pay Investor than the interest due on a Conversion Date rights, preferences, privileges, terms and conditions any other investor in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed received or is entitled to timely satisfy its receive with respect to the security into which Investor is converting pursuant to any other security, instrument, promise, undertaking, commitment, agreement or letter of intent of the Company, whether or not such rights, preferences, privileges, terms and conditions for any other investor are incorporated into the agreements or documents relating to any conversion obligations hereunder; or
(5) the or any issuance of such shares the security or other instrument to that investor or are provided separately, at any time on or after one year prior to the execution of Common Stock would result in a violation of Sections 4(a)(ii), thenthis Agreement. In regard to each conversion hereunder, the Company may not pay interest in kind hereby agrees to take and/or arrange for all necessary corporate and must pay interest in cash by delivering, within three Trading Days related action to enable the execution of each applicable Conversion Datesuch conversion elected by Investor. Except as set forth on Schedule 2.7(d) hereto, an amount in cash equal no subscription, warrant, option, convertible security, or other right (direct or indirect, contingent or otherwise) to the product of (a) the outstanding principal amount purchase or otherwise acquire any equity securities of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.Company
Appears in 2 contracts
Sources: Recapitalization Agreement (Northwest Biotherapeutics Inc), Recapitalization Agreement (Toucan Capital Fund II, LP)
Conversion. (A) This Debenture 5.1. At any time prior to the repayment in full of the Secured Amount, the Lead Lender shall be convertible entitled, at its sole and absolute discretion, by written notice to the Company, to demand (such demand shall bind and shall apply to all the Lender(s)), to convert the entire Secured Amount into shares of Common Stock at the option Ordinary Shares, par value NIS 0.1 each, of the HolderCompany (the “Ordinary Shares”), at a price per share equal to the lower of (a) US $0.20 (twenty US cents) per share (subject to appropriate adjustment in the event of any bonus shares, combinations or splits) and (b) a price per share reflecting a discount to the average closing bid price of an Ordinary Share over the twenty (20) trading days preceding the Initial Closing (the “Benchmark Price”) as follows:
a) If conversion occurs no later than three (3) months after the Initial Closing, the discount shall be 20% (twenty percent) of the Benchmark Price;
b) If conversion occurs more than three (3) months but no later than six (6) months after the Initial Closing, the discount shall be 30% (thirty percent) of the Benchmark Price;
c) If conversion occurs more than six (6) months after the Initial Closing (to the extent extended in accordance with the terms hereof), the discount shall be 50% (fifty percent) of the Benchmark Price; and
d) If conversion occurs upon an Event of Default (as defined below), the discount shall be 50% (fifty percent) of the Benchmark Price.
5.2. For the avoidance of any doubt and notwithstanding any other provision herein, other than being subject to Section 5.3, in any event in which the Company intends or is obligated to repay the Secured Amount, in whole or in part, in cash, under the terms hereof, the Company shall notify the Lead Lender of such intended repayment no less than ten (10) business days prior to any actual repayment, to allow the Lead Lender to demand conversion of the respective amount, or any part at any time and from time thereof, into Ordinary Shares pursuant to time, after Section 5.1 above. To the Original Issue Date extent that the repayment in cash is expected to be performed in connection with the completion or consummation of a Disposition or a Corporate Transaction (subject to Section 5.3), the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon Lead Lender shall be so advised and shall be entitled to provide a conversion hereunder notice that is contingent upon such completion or consummation.
5.3. This Section 5 shall be determined enter into effect only upon approval thereof by adding the sum shareholders of the Company in accordance with the requirements of the Companies Law, which approval shall apply to a controlling shareholder transaction that includes a private offering that may increase the holdings of a controlling shareholder to and above 45% (iforty five percent) of the quotient obtained by dividing share capital of the Company (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined hereina “Shareholders’ Approval”), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of except for this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (iiSection 5.3) shall not be used in the calculation deemed of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, no force or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part effect at any time and from time prior to timeobtaining such Shareholders’ Approval, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof)if at all. The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing act to convene a shareholders meeting to obtain the principal amount converted and Shareholders’ Approval as soon as possible following the date of such conversions. In execution hereof, but in any event no later than fifty (50) days following the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorInitial Closing.
Appears in 2 contracts
Sources: Loan Financing Agreement (Ivy Jerry Lafe JR), Loan Financing Agreement (On Track Innovations LTD)
Conversion. (A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained hereinin this Section 10, if on any Conversion Date:
(1) the number each Holder of shares of Preferred Stock to be redeemed by the Corporation may elect to convert all or any portion of the shares of Preferred Stock held by such Holder into Common Stock in accordance with the provisions of Section 6 (taking into account the limitation in the last sentence of Section 6(a)(i)(B) and any contingencies contemplated by Section 10(e)) at any time prior to the time authorizedRedemption Date, unissued and unreserved which election, for all purposesthe avoidance of doubt, may be made subject to the same or similar contingencies to which any such redemption by the Corporation is made subject. Without limiting the generality of the foregoing, in the event that any such conversion is being effected in connection with, or held as treasury stockpart of a Change of Control or any redemption by the Corporation in accordance with this Section 10 is otherwise made conditional on another event or happening (or the absence of any event or happening), is insufficient the Holder may condition such conversion on the effectiveness of such Change of Control (or such earlier time as the consideration payable to pay interest hereunder in shares holders of Common Stock;
Stock in respect of such Change of Control is determined) or such other event or happening (2) or the Underlying Shares issuable for absence of such event or happening), in which case such conversion (including shall be deemed effective as of immediately prior to any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance such redemption of such shares shares; provided that if such conversion in connection with any such redemption of Common the Preferred Stock would result in the issuance of any Excess Conversion Shares, such election to convert, solely with respect to such Excess Conversion Shares, shall be deemed an election by such Holder to (x) in the case of a violation Change of Sections 4(a)(ii)Control, thenreceive, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days upon consummation of each applicable Conversion Datesuch Change of Control, an amount in cash equal to the product aggregate amount such Holder would have received had all such Excess Conversion Shares converted into Common Stock and such Holder received in respect of the shares of Common Stock issuable upon such conversion (aincluding for all purposes of this proviso Excess Conversion Shares and disregarding the limitation in the last sentence of Section 6(a)(i)(B)) the outstanding principal amount aggregate consideration payable to such holder in respect of the Debentures to be converted on all such Conversion Date and (b) the product shares of (x) the quotient obtained by dividing .12 by 360 Common Stock so issuable upon conversion and (y) the number in connection with any redemption that is not a Change of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock Control Redemption, at the option of the HolderCorporation, in whole or in part at any time either (i) receive the greater of (A) the Redemption Price and from time to time, after (B) the Original Issue Common Stock Trading Price on the last Trading Day preceding the Redemption Date (subject to multiplied by the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to Excess Conversion Shares into which Preferred Stock would have converted but for the Company a completed notice substantially limitation in the form attached hereto as Exhibit A last sentence of Section 6(a)(i)(B) or (ii) continue to hold such Preferred Stock which would have converted into Common Stock but for the limitation in the last sentence of Section 6(a)(i)(B), with the Corporation having no right to redeem such Preferred Stock until the earlier of (I) a "Conversion Notice"). The Conversion Notice shall set forth Change of Control (in which case, upon election to redeem by the remaining principal amount of this Debenture Corporation, the foregoing clause (x) would apply) and all accrued and unpaid interest thereon subsequent to (II) a time at which the conversion at issue. The date on which a Conversion Notice is delivered is limitation in the "Conversion Date." Unless last sentence of Section 6(a)(i)(B) would not be applicable to limit any conversion by the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records such remaining shares of the Holder shall be controlling and determinative in the absence of manifest errorPreferred Stock.
Appears in 2 contracts
Sources: Registration Rights Agreement (Resideo Technologies, Inc.), Investment Agreement (Resideo Technologies, Inc.)
Conversion. (A) This Each Debenture shall may be convertible into shares of Common Stock converted at any time, at the option of the Holder, in whole or in part part, into shares of Common Stock on the terms and conditions set forth in this Section 6.
(a) Each Debenture shall be convertible at the option of the Holder thereof, in whole or in part, at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The as hereinafter provided, into that number of fully paid and nonassessable shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to such shares may be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price constituted on the Conversion Date, providedas hereinafter defined) as shall be obtained by dividing the principal amount of the Debenture outstanding on the Conversion Date which the Holder desires to convert by the Conversion Price, that if subject to adjustment as provided herein. The Conversion Price shall be 4.25 per share.
(b) Before any Holder of this Debenture shall be entitled to convert the same into Common Stock, he shall deliver the Debenture, for transfer and conversion, at the office of the Company, at 11111 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (▇▇ ▇▇▇▇ ▇▇▇▇▇ office or agency of the Company shall have timely elected to pay as the interest due on a Conversion Date Company may designate by notice in cash pursuant writing to the terms hereofHolder) and shall give written notice to the Company that he elects to convert all or part of the Debenture and shall state in writing therein the name or names in which he wishes the certificate or certificates of Common Stock to be issued. Conversion shall be deemed to have been effected on the date when such delivery is made, subsection (ii) shall not be used in and such date is referred to herein as the calculation of "Conversion Date." The Company will, as soon as practicable thereafter, issue and deliver to such Holder certificates for the number of shares of Common Stock issuable upon to which he shall be entitled as aforesaid, together with cash in lieu of any fraction of a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held share as treasury stock, is insufficient to pay interest hereunder hereinafter provide If surrendered Debentures are converted only in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), thenpart, the Company may not pay interest in kind will issue and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal deliver to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth new Debenture representing the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records balance of the Holder shall be controlling and determinative in the absence of manifest errorDebenture.
Appears in 1 contract
Sources: Convertible Debenture (Tesoro Petroleum Corp /New/)
Conversion. (A) This 5.1. The holder of this Debenture shall be convertible have the right, at its option (the "Conversion Option"), at any time within not more than twenty (20) days, or less than ten (10) days, prior to the earliest to occur of the Maturity Date or the Prepayment Date, to convert, in whole but not in part, the principal amount of this Debenture, together with accrued unpaid interest thereon, outstanding at the close of business on the date Payor receives notice of such holder's exercise of the Conversion Option, into fully paid and nonassessable shares of Common Stock Stock, par value $.01 per share (the "Conversion Shares"), at the option of the Holdera conversion price per Conversion Share equal to $0.50, in whole or in part at any time and as such price may be adjusted from time to timetime in accordance with the provisions of this Section 5 (the "Conversion Price"), after such that the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable Conversion Shares obtained upon a conversion hereunder shall be determined by adding dividing the then Conversion Price into the sum of (i) the quotient obtained by dividing (x) then outstanding principal amount of, and accrued unpaid interest on, this Debenture.
5.2. To exercise the outstanding Conversion Option, the holder hereof shall give written notice to Payor that it elects to convert the principal amount of this Debenture to be converted and Debenture, together with accrued unpaid interest thereon, into Conversion Shares in accordance with the provisions of Section 5.1 above (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth specify the remaining name or names in which the holder wishes the certificates for the Conversion Shares to be registered, together with the address or addresses of the persons so named, provided such Conversion Shares may not be registered in the name of a person or persons other than the holder of this Debenture unless the Debenture, when surrendered for conversion, is accompanied by (i) instruments of transfer in form reasonably satisfactory to Payor, duly executed by the holder hereof and (ii) if requested by ▇▇▇▇▇, an instrument executed by such other person, in form reasonably satisfactory to Payor, representing that the Conversion Shares are being acquired for investment and not with a view to distribution within the meaning of the Securities Act of 1933, as amended.
5.3. Promptly after the delivery of the Conversion Notice to Payor, Payor shall cause to be delivered to the holder and/or the holder's designees certificates representing the number of Conversion Shares into which this Debenture is being converted and a cash adjustment in respect of any fraction of a Conversion Share to which the holder shall be entitled. No fractional Conversion Shares will be issued, but an amount of cash equal to the product of the fraction of a Conversion Share which would otherwise be issuable upon the surrender of this Debenture for conversion multiplied by the then existing Conversion Price per Conversion Share will be paid to the holder upon such conversion. Conversion of this Debenture shall be deemed to have been made at the close of business on the date the Conversion Notice is delivered to Payor (the "Conversion Date"), so that interest shall not accrue from and after such date on the principal amount of this Debenture converted and the person or persons entitled to receive Conversion Shares upon such conversion shall be treated for all accrued purposes as having been the record holder or holders thereof at such time and unpaid interest thereon subsequent such conversion shall be at the Conversion Price in effect at such time. The issuance of certificates for Conversion Shares upon conversion of this Debenture shall be made without charge to the conversion at issueholder of this Debenture for any tax in respect of the issuance of such certificates; provided, however, that Payor shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any such certificates in a name other than that of the Payee and Payor shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to Payor the amount of such tax or shall have established to the satisfaction of Payor that such tax has been paid. Upon Payor's (i) delivery of the certificates for the Conversion Shares to the holder of this Debenture and/or its designees and (ii) payment of the cash adjustment, if any, due to the holder of this Debenture pursuant to the terms of this Section 5, the holder of this Debenture shall surrender this Debenture to Payor. The date Certificates representing the Conversion Shares shall be executed on which a Conversion Notice is delivered is behalf of Payor by the manual or facsimile signature of those officers required to sign such certificates under applicable law, and shall bear legends substantially similar to the following: "The securities represented by this certificate and/or the securities issuable upon exercise thereof have not been registered under the Securities Act of 1933, as amended (the "Act"), and may not be offered or sold except (i) pursuant to an effective registration statement under the Act, (ii) to the extent applicable, pursuant to Rule 144 under the Act (or any similar rule under such Act relating to the disposition of securities), or (iii) upon the delivery by the holder to the Company of an opinion of counsel, satisfactory to counsel to the Company, stating that an exemption from registration under such Act is available."
5.4. Payor shall at all times keep available out of its authorized but unissued shares of Common Stock, solely for effecting the conversion of this Debenture, the full number of whole Conversion Date." Unless the Holder is converting Shares then deliverable upon conversion of the entire principal amount outstanding under of this Debenture, and accrued unpaid interest thereon, at the Holder is not time outstanding. Payor shall take at all times such corporate action as shall be required to physically surrender this Debenture to the Company necessary in order that Payor may validly and legally issue fully paid and nonassessable shares of Common Stock in accordance with the provisions of this Section 5.
5.5. In the event Payor shall at any time after the date hereof pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, then upon such dividend or distribution, the Conversion Price in effect immediately prior to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, such dividend or distribution shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in reduced to a price determined by dividing an amount equal to the applicable conversiontotal number of shares of Common Stock outstanding immediately prior to such dividend or distribution multiplied by the Conversion Price in effect immediately prior to such dividend or distribution, which by the total number of shares of Common Stock outstanding immediately after such issuance or sale. For purposes of any computation to be made in accordance with the provisions of this Section 5.5, the shares of Common Stock issuable by way of dividend or distribution shall be evidenced by notations made in deemed to have been issued immediately after the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and opening of business on the date following the date fixed for determination of shareholders entitled to receive such conversionsdividend or distribution.
5.6. In the event the Payor shall at any time subdivide or combine the outstanding shares of Common Stock, the Conversion Price shall forthwith be proportionately decreased in the case of subdivision or increased in the case of combination.
5.7. In the event the Payor shall, at any time or from time to time after the date hereof, issue any shares of Common Stock or other securities convertible into, or exchangeable or exercisable for, Common Stock, in each case other than Excluded Shares (as hereinafter defined), for no consideration or for a consideration per share less than the Conversion Price in effect immediately prior to the issuance of such Common Stock or other securities, the Conversion Price in effect immediately prior to each such issuance shall automatically be lowered to a price equal to the consideration per share received by the Payor upon such issuance. In the case of the issuance of Common Stock for a consideration in whole or part in property other than cash, the value of such property shall be deemed to be the fair market value of such property as determined in good faith by the Board of Directors of the Payor. As used herein, the term "Excluded Shares" shall mean (i) shares of Common Stock issued in connection with transactions described in Sections 5.5 and 5.6 hereof, (ii) shares of Common Stock issued upon the exercise or conversion of any dispute options, rights, warrants or discrepancyother securities outstanding on the date hereof, and (iii) shares of Common Stock issued to officers, directors or employees of, or consultants to, the records Payor pursuant to any agreement, plan or arrangement approved prior to the date hereof by the Board of Directors of the Holder shall be controlling and determinative in the absence of manifest errorPayor or a committee thereof authorized to give such approval.
Appears in 1 contract
Conversion. (A) This Debenture shall be convertible into shares of Common Stock Subject to Sections 1.5(c), 1.5(d), 1.5(e), 1.8, 1.9 and 1.10, at the option Effective Time, by virtue of the HolderMerger and without any further action on the part of Parent, in whole Merger Sub, the Company, any stockholder of the Company or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of other Person:
(i) each share of Company Capital Stock owned by Parent, Merger Sub, the quotient obtained by dividing (x) Company or any direct or indirect wholly owned Subsidiary of Parent, Merger Sub or the outstanding principal amount Company immediately prior to the Effective Time, if any, shall be extinguished and cancelled without payment of this Debenture to be converted and (y) the Conversion Price (as defined herein), and any consideration in respect thereof;
(ii) each share of the amount equal common stock of Merger Sub issued and outstanding immediately prior to (I) the product of (x) the outstanding principal amount of this Debenture to Effective Time shall be converted automatically into one share of common stock of the Surviving Corporation. From and (y) after the product Effective Time, all certificates representing the common stock of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days Merger Sub shall be deemed for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected all purposes to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of represent the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to common stock of the contrary contained herein, if on any Conversion Date:
(1) Surviving Corporation into which they were converted in accordance with the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stockimmediately preceding sentence;
(2iii) all of the Underlying Shares issuable for such conversion shares of Company Preferred Stock that are designated as “Series A Preferred Stock” held by each Non-Dissenting Stockholder shall be converted automatically into the right to receive (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under following the Securities Act (as defined in Section 6);
(3) surrender of the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of certificates representing such shares of Common Company Preferred Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, accordance with Section 1.9): (A) an amount in cash equal to the product of (a1) $1.00 plus the Per Share Amount multiplied by (2) the outstanding principal amount total number of shares of Company Preferred Stock that are designated as “Series A Preferred Stock” held by such Non-Dissenting Stockholder; and (B) the contingent right to receive each Further Distributions Per Share Amount, if any;
(iv) all of the Debentures to shares of Company Preferred Stock that are designated as “Series B Preferred Stock” held by each Non-Dissenting Stockholder shall be converted on automatically into the right to receive (following the surrender of the certificates representing such Conversion Date and shares of Company Preferred Stock in accordance with Section 1.9): (bA) an amount in cash equal to the product of (x1) $1.04 plus the Per Share Amount multiplied by (2) the quotient obtained total number of shares of Company Preferred Stock that are designated as “Series B Preferred Stock” held by dividing .12 such Non-Dissenting Stockholder; and (B) the contingent right to receive each Further Distributions Per Share Amount, if any;
(v) all of the shares of Company Preferred Stock that are designated as “Series C Preferred Stock” held by 360 each Non-Dissenting Stockholder shall be converted automatically into the right to receive (following the surrender of the certificates representing such shares of Company Preferred Stock in accordance with Section 1.9): (A) an amount in cash equal to the product of (1) $2.74 plus the Per Share Amount multiplied by (2) the total number of shares of Company Preferred Stock that are designated as “Series C Preferred Stock” held by such Non-Dissenting Stockholder; and (B) the contingent right to receive each Further Distributions Per Share Amount, if any;
(vi) all of the shares of Company Preferred Stock that are designated as “Series D Preferred Stock” and referred to herein as Series D-1 Shares held by each Non-Dissenting Stockholder shall be converted automatically into the right to receive (following the surrender of the certificates representing such shares of Company Preferred Stock in accordance with Section 1.9): (A) an amount in cash equal to the product of (1) a price per share which results in a compound annual growth rate (measured from the date of issuance of such share) of twenty-five percent (25.0%) on $7.09 (not to exceed, in any event, a price per share equal to 3.00 times $7.09) (such amount, the “Series D-1 Hurdle Return”) multiplied by (2) the total number of shares of Company Preferred Stock that are designated as “Series D Preferred Stock” and referred to herein as Series D-1 Shares held by such Non-Dissenting Stockholder; and (B) the contingent right to receive, after the time that the Effective Time Holder of each share of Company Common Stock, Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock has received distributions with respect to the Per Share Amount and Further Distributions Per Share Amount payable with respect to such share equal to the difference between (y) the Series D-1 Hurdle Return and (z) $7.09 (such difference, the “Series D-1 Hurdle Delta”), each Further Distributions Per Share Amount, if any;
(vii) all of the shares of Company Preferred Stock that are designated as “Series D Preferred Stock” and referred to herein as Series D-2 Shares held by each Non-Dissenting Stockholder shall be converted automatically into the right to receive (following the surrender of the certificates representing such shares of Company Preferred Stock in accordance with Section 1.9): (A) an amount in cash equal to the product of (1) $9.43 (such amount, the “Series D-2 Hurdle Return”) multiplied by (2) the total number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Company Preferred Stock at that are designated as “Series D Preferred Stock” and referred to herein as Series D-2 Shares held by such Non-Dissenting Stockholder; and (B) the option of the Holder, in whole or in part at any time and from time contingent right to timereceive, after the Original Issue Date (subject time that the Effective Time Holder of each share of Company Common Stock, Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock has received distributions with respect to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering Per Share Amount and Further Distributions Per Share Amount payable with respect to such share equal to the Company a completed notice substantially in difference between (y) the form attached hereto as Exhibit A Series D-2 Hurdle Return and (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenturez) $7.09 (such difference, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b“Series D-2 Hurdle Delta”), each Conversion NoticeFurther Distributions Per Share Amount, once given, if any; and
(viii) all of the shares of Company Common Stock held by each Non-Dissenting Stockholder shall be irrevocable. Conversions hereunder shall have converted automatically into the effect right to receive (following the surrender of lowering the outstanding principal amount certificates representing such shares of this Debenture plus all accrued and unpaid interest thereon Company Common Stock in accordance with Section 1.9): (A) an amount in cash equal to the applicable conversionproduct of (1) the Per Share Amount multiplied by (2) the total number of shares of Company Common Stock held by such Non-Dissenting Stockholder; and (B) the contingent right to receive each Further Distributions Per Share Amount, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorif any.
Appears in 1 contract
Conversion. (A) This Debenture shall Subject to the provisions of this paragraph 9 and the Company's right to deliver cash or a combination of cash and Common Stock in lieu of delivering Common Stock upon a conversion, and subject to and upon compliance with the provisions of the Indenture, the principal amount of the Note, or any portion of such principal amount which is $1,000 or an integral multiple thereof, may be convertible converted, prior to the close of business on the maturity date of the Notes, subject to the conditions and during the periods described below, into that number of fully paid and non-assessable shares of Common Stock obtained by dividing the principal amount of the Note or portion thereof to be converted by the conversion price of $21.28 per share, as adjusted from time to time as provided in the Indenture (the "Conversion Price"), upon surrender of the Note to the Company at the option office or agency maintained for such purpose (or at such other offices or agencies designated for such purpose by the Company), accompanied by written notice of conversion duly executed (and if the shares of Common Stock to be issued on conversion are to be issued in any name other than that of the Holderregistered Holder of this Note, by instruments of transfer, in whole form satisfactory to the Company, duly executed by the registered Holder or its duly authorized attorney). In case such surrender shall be made during the period from the close of business on any Regular Record Date immediately preceding any Interest Payment Date to the opening of business on such Interest Payment Date, the Note also shall be accompanied by payment, in part funds acceptable to the Company, of an amount equal to the accrued and unpaid interest, if any, otherwise payable on such Interest Payment Date on the principal amount of the Note then being converted; provided, however, that no such payment need be made if (i) there exists at the time of conversion a default in the payment of principal of or interest or Additional Amounts, if applicable, on the Notes (including any time principal of or interest payable in connection with a repurchase pursuant to Section 4.08 or Section 4.09 and a redemption pursuant to Section 4.01); or (ii) the Company shall have specified a Redemption Date that is after the Regular Record Date and prior to such Interest Payment Date. Subject to the aforesaid requirement for a payment in the event of conversion during the period from the close of business on any Regular Record Date immediately preceding any Interest Payment Date to the opening of business on such Interest Payment Date, no adjustment shall be made on conversion for interest, if any, accrued and unpaid hereon or for dividends on Common Stock delivered on conversion. The Conversion Price will be adjusted for dividends or distributions on Common Stock payable in Common Stock; subdivisions or combinations of Common Stock; distributions to all holders of Common Stock of certain rights or warrants to purchase Common Stock, for a period expiring within 60 days after the date of such distribution, at a price less than the Current Market Price; distributions to all holders of Common Stock of shares of Capital Stock (other than Common Stock), cash or evidences of the Company's indebtedness or assets; purchases of the Common Stock pursuant to tender offers by the Company or any Subsidiary of the Company; and certain reclassifications, consolidations, mergers, share exchanges, combinations and sales, conveyances or other dispositions of all or substantially all of the property and assets of the Company, in each case, in accordance with the terms and conditions set forth in the Indenture. Additionally, the Indenture permits the Company to, from time to time, after the Original Issue Date (subject to the limitations on conversion set forth extent permitted by law, reduce the Conversion Price by any amount for any period of at least 20 days, if the Board of Directors has made a determination that such reduction would be in Section 4(a)(ii) hereof)the Company's best interests, which determination shall be conclusive and described in a resolution of the Board of Directors. The number Company shall not issue fractional shares or scrips representing fractions of shares of Common Stock issuable upon a conversion hereunder any such conversion, but shall make an adjustment therefor in cash based upon the Current Market Price of the Common Stock for the five consecutive trading days immediately preceding the Conversion Date. If more than one Note shall be determined surrendered for conversion at one time by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein)same Holder, and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for full shares which such principal amount was outstanding, divided by (II) the Conversion Price shall be issuable upon conversion shall be computed on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation basis of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding aggregate principal amount of the Debentures Notes (or specified portions thereof to be converted on such Conversion Date and (bthe extent permitted hereby) the product so surrendered for conversion. A Note in respect of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at a Holder has delivered a Purchase Notice or Fundamental Change Repurchase Notice exercising the option of the Holder, in whole or in part at any time and from time such Holder to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to require the Company a completed to purchase such Note may be converted only if such notice substantially of exercise is withdrawn in accordance with the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records terms of the Holder shall be controlling and determinative in the absence of manifest errorIndenture.
Appears in 1 contract
Conversion. (A) This 3.1. The Holder of this Debenture shall be convertible into shares of Common Stock have the right, at the option of the such Holder's option, in whole or in part at any time and from during the term hereof (including at any time to time, after the Original Issue Date (subject subsequent to the limitations on receipt of the Redemption Notice but prior to the Redemption Date), to convert all, but not less than all, of this Debenture into such number of fully paid and nonassessable shares of the Corporation's $0.001 par value Common stock (the "Common Stock") as shall be provided herein.
3.2. The Holder of this Debenture may exercise the conversion set forth right provided in this Section 4(a)(ii3 by giving written notice (the "Conversion Notice") hereof)to the Corporation of the exercise of such right and stating the name or names in which the stock certificate or stock certificates for the shares of the Common Stock are to be issued and the address to which such certificates shall be delivered. The Conversion Notice shall be accompanied by the Debenture. The number of shares of Common Stock that shall be issuable upon a conversion hereunder of the Debenture shall be_______________ (___________) which such Common Stock shall be determined issued pursuant to the Corporation's fourth private placement offering pursuant to Section 4(2) of the Securities Act of 1933, as amended, and Regulation D promulgated thereunder and pursuant to registration exemptions available under applicable state securities laws.
3.3. Conversion shall be deemed to have been effected on the date the Conversion Notice is given (the "Conversion Date"). Within thirty (30) business days after receipt of the Conversion Notice, the Corporation shall issue and deliver by adding hand against a signed receipt therefor or by United States registered mail, return receipt requested, to the sum of (i) address designated by the quotient obtained by dividing (x) the outstanding principal amount Holder of this Debenture to be converted and (y) in the Conversion Price (as defined herein)Notice, and (ii) a stock certificate or stock certificates of the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of Corporation representing the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorentitled.
Appears in 1 contract
Sources: Agreement (Aaro Broadband Wireless Communications Inc)
Conversion. (Aa) This Debenture Immediately prior to the consummation of the Qualified IPO on or before the Maturity Date, the whole of the Principal Amount then outstanding shall be convertible converted automatically into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (ai) 5 multiplied by (ii) the quotient of (A) the sum of (1) the then total outstanding principal amount number of ordinary shares of the Debentures Company (including all options, warrants or other securities or equity convertible into or exercisable for or which carry rights to be subscribe for or purchase ordinary shares of the Company (excluding the Notes), on an as-converted on such basis, but excluding any Qualified Equity Securities (as defined below) and all the Conversion Date and Shares then in issue (if any)) plus (2) the then reserved but unallocated ordinary shares under the Company’s stock option plan divided by (B) 48 multiplied by (iii) the quotient of (A) the whole of the Principal Amount then outstanding divided by (B) USD25,000,000.00.
(b) Subject to Condition 6(a) above, the Noteholder shall have the right at any time but is not obliged to convert all or a portion of the Principal Amount into the amount of Conversion Shares equal to the product of (xi) 5 multiplied by (ii) the quotient obtained by dividing .12 by 360 and of (yA) the sum of (1) the then total outstanding number of days ordinary shares of the Company (including all options, warrants or other securities or equity convertible into or exercisable for or which such principal amount was outstandingcarry rights to subscribe for or purchase ordinary shares of the Company (excluding the Notes), on an as-converted basis, but excluding any Qualified Equity Securities (as defined below) and all the Conversion Shares then in issue (if any)) plus (2) the then reserved but unallocated ordinary shares under the Company’s stock option plan divided by (B) 48 multiplied by (iii) the quotient of (A) the portion of the Principal Amount being converted by the Noteholder divided by (B) USD25,000,000.00; provided that the Noteholder shall not be able to convert a portion of the Principal Amount that is less than USD250,000.00.
(Cc) This Debenture shall be For purposes of this Condition 6, “Qualified Equity Securities” means (i) all Shares (including all options, warrants or other securities or equity convertible into or exercisable for or which carry rights to subscribe for or purchase ordinary shares of Common Stock at the option Company on an as-converted basis) issued for cash prior to a Conversion under Condition 6(a) or Condition 6(b) where the aggregate of the Holder, in whole or in part at issue price and any time and from time to time, after the Original Issue Date (subject to the limitations on exercise price/conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to price reflects a pre-money valuation of the Company exceeding USD397,500,000.00 (if any) and (ii) all Shares to be issued and offered for purchase or subscription under a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion DateQualified IPO." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Sources: Subscription Agreement (Gushan Environmental Energy LTD)
Conversion. (A) This Debenture shall be convertible into shares Each Investor participating in the Offer shall, immediately upon execution of Common Stock at this Agreement and prior to the option close of business on the business day immediately prior to any exercise of the Holderunderwriters' over-allotment option in the Offering (each such exercise of the over-allotment option, in whole or in part at any time and from time to timethe "Over-Allotment"), after the Original Issue Date (subject as applicable, deliver to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Custodian the certificate or certificates for the Series B Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted into Common Stock and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used sold in the calculation Offering or the Over-Allotment, as applicable, duly endorsed, together with written notice stating that such Investor elects to convert such Series B Stock, all in compliance with Section 6(a)(i)(A) of the number Certificate of shares Designations (each such delivery of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued certificates and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), thennotice, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The , and shall instruct the Custodian to deliver the Conversion Notice to the Company immediately upon receipt; PROVIDED, HOWEVER, that no shares of Series B Stock delivered to the Custodian shall be deemed surrendered by such Investor, or converted into shares of Common Stock, until immediately prior to the close of business on the day immediately prior to the day on which the Offering or the Over-Allotment, as applicable, is consummated; and PROVIDED FURTHER, HOWEVER, that if the underwriting agreement in connection with the Offering (the "Underwriting Agreement") is terminated, and the Offering or the Over-Allotment, as applicable, has not been consummated with respect to all of the shares of Common Stock proposed to be sold in the Offering and the Over-Allotment prior to the date of termination, (a) the surrender and conversion of the shares of Series B Stock subject to the Conversion Notice shall set forth the remaining principal amount of this Debenture be deemed null and all accrued and unpaid interest thereon subsequent void to the conversion at issue. The date on which a Conversion Notice is delivered is extent the "Conversion Date." Unless underlying shares of Common Stock have not been sold in the Holder is converting Offering or the entire principal amount outstanding under this DebentureOver-Allotment, as applicable (b) the Holder is not be required to physically surrender this Debenture parties hereto will deem the Offering or the Over-Allotment, as applicable, withdrawn to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall extent that such underlying shares of Common Stock have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made not been sold in the Conversion Notice. The Holder Offering or the Over-Allotment, as applicable, and (c) the Company shall maintain records showing return to the principal amount converted and appropriate Investor any certificate or certificates , or issue replacement certificates, representing shares of Series B Stock for which the date underlying shares of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative Common Stock were not sold in the absence of manifest errorOffering or the Over-Allotment, as applicable.
Appears in 1 contract
Sources: Conversion Agreement (Phillips Van Heusen Corp /De/)
Conversion. (Aa) This Debenture shall be convertible into shares Instead of Common Stock at the option a repayment of the HolderLoan (pursuant to Section 4), in whole or in part the Lender has the right (but not the obligation) at any time before the Maturity Date to convert the entire outstanding Loan (including any unpaid and from time accrued interest thereon and net of any deductions, such as withholding taxes) into common shares of the Borrower. In order to exercise its conversion right pursuant to this Section 8, the Lender shall notify the Borrower in writing about its intention to convert no less than ten (10) Business Days prior to the Maturity Date.
(b) The Lender understands and acknowledges that for the conversion of the Loan and the accrued interest thereon into common shares of the Borrower, such share capital increase may not be authorized by the Borrower at that given time. However, the Borrower will take all reasonable measures in order to take such corporate actions and obtain all authorizations and consents necessary to authorize and issue such shares to ensure that the Lender can enforce its conversion rights under this Agreement, after the Original Issue Date written notification received in accordance with Section 8(a) above.
(subject c) The conversion rate shall be equal to the limitations price paid per common share based on the pre-money valuation of CHF 65’933’▇▇▇ (▇▇▇▇▇ ▇▇▇▇▇▇ Sixty Five Million Nine Hundred and Thirty Three Thousands One Hundred and Seventy Five) (on a fully-diluted basis) of the new shares issued for the Financing (the “Financing PM Valuation”), calculated as a discount of 25 per cent (the “Conversion Discount”) on the latest pre-money valuation of CHF 87’910’900 (Swiss Francs Eighty Seven Million Nine Hundred and Ten Thousands Nine Hundred) applied for the conversion set forth of the Series A shareholders loans into NLS equity in Section 4(a)(ii) hereofMarch 2019 (the “Latest PM Valuation”). The number of common shares of Common Stock issuable to be issued upon a such conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to the entire outstanding Loan including any unpaid and accrued interest thereon (Inet of any deductions, such as withholding taxes) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price price per share paid based on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderFinancing PM Valuation.
(Bd) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal The amount of the Debentures to unconverted Loan and interest, if any, shall be converted on such Conversion Date and (b) paid by the product Borrower in cash instead of (x) the quotient obtained by dividing .12 by 360 and (y) the number issuing fractions of days for which such principal amount was outstandingcommon shares.
(Ce) This Debenture The issuance of the common shares pursuant to this Section 8 shall be convertible upon the terms and subject to the conditions applicable to the Financing.
(f) The common shares received by the Borrower upon the Conversion grant the rights as set forth in the shareholders’ agreement by and among the shareholders of the Borrower and the articles of association of the Borrower. Should the Loan (or a part of it) be converted into shares of Common Stock at the option Borrower pursuant to this Section 8, the Lender hereby irrevocably and unconditionally declares to become a party to the then current version of the Holder, in whole or in part at any time shareholders’ agreement by and from time to time, after among the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records shareholders of the Holder shall be controlling and determinative in the absence of manifest errorBorrower.
Appears in 1 contract
Sources: Convertible Loan Agreement (NLS Pharmaceutics Ltd.)
Conversion. (Aa) This Debenture shall Subject to Sections 6(c) - (e) below, principal and accrued interest on this Note may be convertible into shares of Common Stock converted in whole at the option election of the HolderCompany upon the Maturity Date, in whole or in part at any time and from time to timeinto the Company's Common Shares, after the Original Issue Date USD $0.0005 par value per share (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof"Common Shares"). The number of shares of Common Stock issuable upon a conversion hereunder into which this Note may be converted shall be determined by adding [*].
(b) If the sum Company elects to convert this Note into Common Shares, it must so notify the Holder in writing at least [*] prior to the Maturity Date, and all principal and all accrued interest must be so converted. The Company may not convert partial amounts of principal or interest. Subject to Section 6(c) below, if the Company does not elect to convert this Note into Common Shares, all outstanding principal and all accrued interest thereon must be paid to the Holder in cash on the Maturity Date as set forth in Section 3, unless otherwise agreed in writing by the Holder.
(c) In no event shall the Company be entitled to convert this Note and the accrued interest into a total number of Common Shares that, together with the Second Closing Shares (if they are to be issued at the time of such conversion), exceeds 9.9% of the total is- sued and outstanding Common Shares as of the date of such conversion; if conversion of this Note would exceed this 9.9% threshold, that portion of the principal and accrued interest that, including the Second Closing Shares (if to be then issued), would convert into 9.9% of the total issued and outstanding shares of Common Shares as of the date of such conversion shall be so converted, and the remainder of the principal and accrued interest shall be repaid in cash.
(d) The Company shall not be entitled to convert any portion of this Note or the accrued interest unless there is on the conversion date (i) an effective registration statement under the quotient obtained by dividing (x) Act covering resale of all of the outstanding Common Shares into which the principal amount of this Debenture to be converted Note and all accrued interest thereon would convert, (yii) the Conversion Price (as defined herein)such Shares are listed on a Principal Trading Market, and (iiiii) the amount equal Company has received all requisite consents and permissions for the Conversion Shares from all applicable governmental entities, including, without limitation, the Bermuda Monetary Authority, which consent already has been obtained subject to (Ithe requirement that the Common Shares are listed on an appointed stock exchange as defined in Section 2(1) of the product Companies Act 1981 of (x) Bermuda. If such is not the case at any time prior to the Maturity Date, then this Note shall remain outstanding until the Maturity Date and, if no such effective registration statement is then in place, the Company will be required to repay all outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price accrued interest in cash on the Conversion Maturity Date. In addition, provided, that if the Company shall have timely elected not be entitled to pay convert the principal of this Note or the accrued interest due on during a Conversion Date in cash pricing period used to determine the Second Purchase Price pursuant to the Investment Agreement.
(e) After this Note is converted pursuant to the terms hereofof this Section 6 or repaid pursuant to Section 3, subsection the Holder shall surrender this Note at the office of the Company. If this Note is converted, the Company shall, within three (ii3) shall not Trading Days, cause to be used issued and delivered to the Holder of this Note a certificate or certificates in the calculation name of the Holder (unless otherwise designated by the Holder) for the number of shares to which the Holder of Common Stock issuable this Note shall be entitled. If this Note matures on the Second Closing Date in accordance with Section 1(a) and is converted in accordance with Section 6, such conversion shall be deemed to have been made on the Second Closing Date, immediately prior to the Second Closing. The person or persons entitled to receive the shares issued upon a any conversion hereundershall be treated for all purposes as the record holder or holders of such shares as of such date. No fractional shares shall be issued upon conversion of this Note. In lieu thereof, the Company shall pay to the Holder the amount of outstanding principal and interest that is not so converted.
(Bf) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and If the Company shall maintain records showing by reclassification of securities or otherwise change any of the principal amount converted Common Shares into the same or a different number of securities of any other class or classes, this Note shall thereafter represent the right to acquire such number and kind of securities as would have been issuable as the date result of such conversions. In change with respect to the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorCommon Shares immediately prior to such reclassification.
Appears in 1 contract
Sources: Convertible Subordinated Promissory Note (Xoma LTD /De/)
Conversion. All of the issued and outstanding shares of capital stock of the Merger Subsidiary and Holdings shall, by virtue of the Merger and without any action on the part of the respective holders thereof, be converted or cancelled, as the case may be, as follows:
(a) At the Effective Time, each outstanding share of common stock, par value $0.01 per share, of the Merger Subsidiary shall be converted into one share of common stock, par value $0.01 per share, of the Surviving Company.
(b) Each share of Holdings Common Stock owned by Holdings as treasury stock shall be cancelled and retired and shall cease to exist at the Effective Time, and no consideration shall be delivered in exchange therefor.
(c) Each share of Holdings Common Stock (other than shares to be cancelled in accordance with Section 2.5(b) hereof) (a “Share”) issued and outstanding immediately prior to the Effective Time shall be converted at the Effective Time into (i) the right to receive an amount of cash equal to the quotient obtained by dividing (A) This Debenture shall be convertible into shares the Purchase Price minus the Escrow Cash by (B) the sum of Common Stock at (1) the option number of the Holder, in whole or in part at any time Shares issued and from time to time, after the Original Issue Date (subject outstanding immediately prior to the limitations on conversion set forth in Section 4(a)(iiEffective Time plus (2) hereof). The the number of shares of Holdings Common Stock issuable upon subject to Vested Options (the “Fully Diluted Shares”) and (ii) the contingent and deferred right to receive (A) the portion of the Escrow Fund attributable to such Share as provided in the Escrow Agreement and (B) the portion of the proceeds received by the Company from the Retained Litigation and the unpaid portion of the Working Capital Holdback set aside by the Stockholders’ Representative pursuant to Section 2.7(d) attributable to such Share, determined on a conversion hereunder Pro Rata Basis.
(d) Each Vested Option shall be determined by adding converted at the sum of Effective Time into (i) the right to receive, in respect of each share of Holdings Common Stock subject to such Vested Option, an amount of cash, if any, equal to (A) the quotient obtained by dividing (x1) the outstanding principal amount of this Debenture to be converted and Purchase Price minus the Escrow Cash by (y2) the Conversion Price Fully Diluted Shares, minus (as defined herein), B) the exercise price payable upon exercise in full of such Vested Option and (ii) the amount equal contingent and deferred right to receive (IA) the product portion of the Escrow Fund attributable to such Vested Option as provided in the Escrow Agreement and (xB) the outstanding principal amount portion of this Debenture to be converted and (y) the product of (1) the quotient obtained proceeds received by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected from the Retained Litigation and the unpaid portion of the Working Capital Holdback set aside by the Stockholders’ Representative pursuant to pay the interest due Section 2.7(d) attributable to such Vested Option, determined on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderPro Rata Basis.
(Be) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number Each Option of shares of Common Stock Holdings that is not a Vested Option shall be cancelled at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingEffective Time.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Global BPO Services Corp)
Conversion. (A) This A Holder may not convert- this Debenture shall be convertible into or receive shares of Common Stock as payment of interest hereunder to the extent such conversion or receipt of such interest payment would result in the Holder, together with any affiliate thereof, beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder) in excess of 4.9% of the then issued and outstanding shares of Common Stock, including shares issuable upon conversion of, and payment of interest on, this Debenture held by such Holder after application of this Section. Since the Holder will not be obligated to report to the Obligor the number of shares of Common Stock it may hold at the time of a conversion hereunder, unless the conversion at issue would result in the issuance of shares of Common Stock in excess of 4.9% of the then outstanding shares of Common Stock without regard to any other shares which may be beneficially owned by the Holder or an affiliate thereof, the Holder shall have the authority and obligation to determine whether the restriction contained in this Section will limit any particular conversion hereunder and to the extent that the Holder determines that the limitation contained in this Section applies, the determination of which portion of the principal amount of this Debenture is convertible, shall be the responsibility and obligation of the Holder. If the Holder has delivered a Conversion Notice for a principal amount of this Debenture that, without regard to any other shares that the Holder or its affiliates may -beneficially own, would result in the issuance in excess of the permitted amount hereunder, the Obligor shall notify the Holder of this fact and shall honor the conversion for the maximum principal amount permitted to be converted on such Conversion Date in accordance with the periods described in Section 3(a)(i)(A) and, at the option of the Holder, either retain,any principal amount tendered for conversion in whole excess of the permitted amount hereunder for future conversions or in part at any time and from time to time, after the Original Issue Date (subject return such excess principal amount to the limitations on conversion set forth in Section 4(a)(ii) hereof)Holder. The number provisions of this Section may be waived by a Holder (but only as to itself and not to any other Holder) upon not less than 65 days prior notice to the Obligor. -Other Holders shall be unaffected by any such waiver. -
(i) Nothing herein shall limit a Holder's right to pursue actual damages or declare an Event of Default pursuant to Section 2 herein for the Obligor `s failure to deliver certificates representing shares of Common Stock issuable upon conversion within the period specified herein and such Holder shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, in each case without the need to post a bond or provide other security. The exercise of any such rights shall not prohibit the Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable law. -
(ii) In addition to any other rights available to the Holder, if the Obligor fails to deliver to the Holder such certificate or certificates pursuant to Section 3(a)(i)('A) by the fifth (5th) Trading Day after the Conversion Date, and if after such fifth (5th) Trading Day the Holder purchases (in an open market transaction or otherwise) Common Stock to deliver in satisfaction of a sale by such Holder of the Underlying Shares which the Holder anticipated receiving upon such conversion hereunder (a "Buy-In"), then the Obligor shall be determined (A) pay in cash to the Holder (in addition to any remedies available to or elected by adding the sum of (iHolder) the quotient obtained amount by dividing which (x) the outstanding principal amount of this Debenture to be converted and Holder's total purchase price (yincluding brokerage commissions, if any) for the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and Common Stock so purchased exceeds (y) the product of (1) the quotient obtained aggregate number of shares of Common Stock that such Holder anticipated receiving from the conversion at issue multiplied by dividing .12 by 360 and (2) the number market price of days for which such the Common Stock at the time of the sale giving rise to such-purchase obligation and (B) at the -option of the Holder, either reissue a Debenture in the principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant equal to the terms hereof, subsection (ii) shall not be used in principal - amount of the calculation of attempted conversion or deliver to the Holder the number of shares of Common Stock issuable upon that would have been issued had the Obligor timely complied with its delivery requirements under Section 3(a)(z)(A). For example, if the Holder purchases Common Stock - having a total purchase price of $11,000 to oover a Buy-In with respect to an attempted conversion hereunderof Debentures with respect to which the market price of the Underlying Shares on the date of conversion was a total of $10,000 under clause (A) of the immediately preceding sentence, the Obligor shall be required to pay the Holder $1,000. The Holder shall provide the Obligor written notice indicating the amounts payable to the Holder in respect of the Buy-In.
(Bi) Notwithstanding anything The Holder is entitled, at its option, to convert, and sell on the same day, at any time, until payment in full of this Debenture, all or any part of the principal amount of the Debenture, plus accrued interest, into shares of the Company's Common Stock at the price per share equal to the contrary contained hereinlesser of (a) the lowest Closing Bid Price of the Common Stock during the ten (10) trading days immediately prior to the date the Obligor files the Underlying Shares Registration Statement (the "Fixed Conversion Price") or (b) eighty percent (80%) of the lowest Closing Bid Price, if on any as quoted by Bloomberg, LP (the "VWAP") of the Common Stock for the five (5) trading days immediately preceding the Conversion Date:. Subparagraphs (a) and (b) above are individually referred to as a "Conversion Price" and may be adjusted pursuant to the other terms of this Debenture.
(1ii) If the Obligor, at any time while this LYebenture is outstanding, shall (a) pay a stock dividend or otherwise make a distribution- or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock, (b) subdivide outstanding shares of Common Stock into a larger number of shares, (c) combine (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (d) issue by reclassification of shares of the Common Stock any shares of capital stock of the Obligor, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock at (excluding treasury shares, if any) outstanding before such event and of which the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares denominator shall be the number of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result outstanding after such event. Any adjustment made pursuant to this Section shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a violation subdivision, combination or re-classification. -
(iii) If the Obligor, at any time while this Debenture is outstanding, shall issue rights, options or warrants to all holders of Sections 4(a)(ii), then, the Company may Common Stock (and not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (aHolder) the outstanding principal amount of the Debentures entitling them to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days subscribe for which such principal amount was outstanding.
(C) This Debenture shall be convertible into or purchase shares of Common Stock at a price per share less than the Closing Bid Price at the record date mentioned below, then the Conversion Price shall be multiplied by a fraction, of which the denominator shall be the number of shares of the Common Stock (excluding treasury shares, if any) outstanding on the date of issuance of such rights or warrants (plus the number of additional shares of Common Stock offered for subscription or purchase), and of which the numerator shall be the number of shares of the Common Stock (excluding treasury shares, if any) outstanding on the date of issuance of such rights or warrants, plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at such Closing Bid Price. Such adjustment shall be made whenever such rights or warrants are issued, and shall become effective immediately after the record date for the determination of stockholders entitled to receive such rights, options or warrants. However, upon the expiration of any such right, option or warrant to purchase shares of the Common Stock the issuance of which resulted in an adjustment in the Conversion Price pursuant to this -Section, if any such right, option or warrant shall expire and shall not have been exercised, the Conversion Price shall immediately upon such expiration be recomputed and effective immediately upon such expiration be increased to the price which it would have been (but reflecting any other adjustments in the Conversion Price made pursuant to the provisions of this Section after the issuance of such rights or warrants) had the adjustment of the Conversion Price made upon the issuance of such rights, options or warrants been made on the basis of offering for subscription or purchase only that number of shares of the Common Stock actually purchased upon the exercise of such rights, options or warrants actually exercised.
(iv) If the Obligor or any subsidiary thereof, as applicable, with respect to Common Stock Equivalents (as defined below), at any time while this Debenture is outstanding, shall issue shares of Common Stock or rights, warrants, options or other securities or debt that are convertible into or exchangeable for shares of .Common Stock ("Common Stock Equivalents") entitling any Person to acquire shares of Common Stock, at a price per share less than the Conversion Price (if the holder of the Common Stock or Common Stock Equivalent so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options - or rights per share which is issued in connection with suck issuance, be entitled to receive shares of Common Stock at a price -per share which is less than the Conversion Price, - such issuance shall - be deemed to have occurred for less than the Conversion Price), then, at the sole option of the Holder, the Conversion Price shall be adjusted to mirror the conversion, exchange or purchase price for such Common Stock or Common Stock Equivalents (including any reset provisions thereof) at issue. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Obligor shall notify the Holder in whole writing, no later than one (1) business day following the issuance of any Common Stock or in part Common Stock Equivalent subject to this Section, indicating therein the applicable issuance price, or of applicable reset price, exchange price, conversion price and other pricing terms. No adjustment under this Section shall be made as a result of issuances and exercises of options to purchase shares of Common Stock issued for compensatory purposes pursuant to any of the Obligor's stock option or stock purchase plans.
(v) If the Obligor, at any time while this Debenture is outstanding, shall distribute to all holders of Common Stock (and from time not to timethe Holder) evidences of its indebtedness or assets or rights or warrants to subscribe for or purchase any security, then in each such case the Conversion Price at which this Debenture shall thereafter be convertible shall be determined by multiplying the Conversion Price in effect immediately prior to the record date fixed for determination of stockholders entitled to receive such distribution by a fraction of which the denominator shall be the Closing Bid Price determined as of the record date mentioned above, and of which the numerator shall be such Closing Bid Price on such record date less the then fair market value at such record date of the portion of such assets -or evidence of indebtedness so distributed applicable to one outstanding share of the Common Stock as determined by the Board of Directors in good faith. In either case the adjustments shall be described in a statement provided to the Holder of the portion of assets or evidences of indebtedness so distributed or such subscription rights applicable to one share of Common Stock. Such adjustment shall be made whenever any such distribution is made and shall become effective immediately after the Original Issue Date record date mentioned above. -
(subject vi) In case of any reclassification of the Common Stock or any compulsory share exchange pursuant to which the limitations on conversion set forth in Section 4(a)(ii) hereof). The Common Stock is converted into other securities, cash or--property, the Holder shall effect conversions by delivering to have the Company a completed notice substantially right thereafter to, at its option, (A) convert the then outstanding principal amount, together with all accrued but unpaid interest and any other amounts then owing hereunder in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount respect of this Debenture into the shares of stock and other securities, cash and property receivable upon or deemed to be held by holders of the Common Stock following such reclassification or share exchange, and the Holder of -this Debenture shall be entitled upon such event to receive such amount of securities, cash or prOperty as the shares of the Common Stock of the Obligor into which the then outstanding principal amount, together with all accrued and but unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender and any other amounts then owing hereunder in respect of this Debenture could have been converted immediately prior to such reclassification or share ~xchange would have been entitled, or (B) require the Company in order Obligor to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering prepay the outstanding principal amount of this Debenture Debenture, plus all accrued interest and unpaid interest thereon other amounts due and payable thereon. The entire prepayment price shall be paid in an amount equal cash. This provision shall similarly apply to successive reclassifications or share exchanges. -
(vii) Within 30 days of the date hereof, the Obligor shall maintain a share reserve of not less than 65,000,000 shares of Common Stock issuable upon conversion of this Debenture; and within three (3) Business Days following the receipt by the Obligor of a Holder's notice that such minimum number of Underlying Shares is not so reserved, the Obligor shall promptly reserve a sufficient number of shares of Common Stock to comply with such requirement. -
(viii) All calculations under this Section 3 shall be rounded up to the applicable conversion, which shall be evidenced by notations made in nearest $0.001 of a share. - (ix) Whenever the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancyPrice is adjusted pursuant to Section 3 hereof, the records Obligor shall promptly mail to the Holder a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the Holder shall be controlling and determinative in the absence of manifest errorfacts requiring such adjustment.
Appears in 1 contract
Conversion. (A) This Debenture shall be convertible into shares of Common Stock at At the option Holder’s option, on the Maturity Date or immediately after the expiry of the Holdercure period contained in the Section 6.1(a), as applicable, in whole or in part at any time and from time to timelieu of cash payment, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company Holder shall have timely elected the right but not the obligation to pay convert the interest due on a Conversion Date in cash Obligations into either Ordinary Shares or Series A Convertible preference shares (“Series A Preference Shares”) pursuant to the terms hereof, subsection (ii) shall not be used in the calculation and conditions of the number Certificate of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained hereinDesignation, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A B (a "Conversion Notice"the “Certificate of Designation”). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless If the Holder is converting elects to convert the entire principal amount outstanding under this Debenture, Obligations the Holder is not shall be required to physically surrender this Debenture to issued (a) if Nasdaq Approval (as defined in the Company in order to effect conversions. Subject to Section 4(bCertificate of Designation) has been obtained, a number of Ordinary Shares of the Company, par value $0.0001 per share (“Ordinary Shares”), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have in the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an aggregate amount equal to the quotient (rounded down to the nearest whole share) obtained by dividing the dollar amount of the Obligations by the applicable conversionConversion Price or (b) if the Nasdaq Approval has been not been obtained, a number of Series A Preference Shares equal to one one-hundredth times the number of Ordinary Shares issuable pursuant to the preceding clause (a) which shall ultimately be evidenced by notations made convertible into such number of Ordinary Shares issuable pursuant to the preceding clause (a) subject to the Nasdaq Approval. For the avoidance of doubt, a hypothetical conversion scenario is provided in Schedule II attached hereto. For purposes of this Section 4, “Conversion Price” means the Conversion Notice. The Holder price per Ordinary Share equal to the product of 100% of the Relevant Price less 22.5%; provided that the Relevant Price and the Company resulting Conversion Price shall maintain records showing not be below $1.29 and $1.00, respectively; “Relevant Price” means the principal amount converted average Closing Bid Price of the Ordinary Shares during the thirty (30) trading days period ending on the trading day immediately preceding the Maturity Date provided that any calculation of the Relevant Price shall disregard the Closing Bid Price for any day on which the Ordinary Shares are not traded on the NASDAQ Stock Market LLC (“Nasdaq”); and “Closing Bid Price” for the date Ordinary Shares as of any date, means the last closing bid/trade price for such shares on Nasdaq as reported by Bloomberg or, if no such closing bid/trade price is reported for such shares by Bloomberg, the last such closing bid/trade price of such conversions. In shares that is reported by B▇▇▇▇▇▇▇▇, in each case adjusted as appropriate for any variations to the event of Issuer’s share capital (to the extent that any dispute or discrepancy, the records of the Holder shall be controlling and determinative such variation has not already been reflected in the absence of manifest errorsuch closing bid/trade price).
Appears in 1 contract
Conversion. (A) This Debenture Subject to the provisions of this Article III, at the Effective Time, by virtue of the Merger and without any action on the part of the shareholders of ABI or Murd▇▇▇, ▇▇e shares of the constituent corporations shall be convertible into converted as follows:
(a) Except for shares of Common Murd▇▇▇ ▇▇▇mon Stock at issued and outstanding immediately prior to the option of the HolderEffective Time as to which dissenters' rights have been perfected and not withdrawn, in whole or in part at any time and from time to time, after the Original Issue Date (subject to Section 3.4 relating to fractional shares, each share of Murd▇▇▇ ▇▇▇mon Stock (excluding shares to be cancelled pursuant to Section 3.3 of this Agreement) issued and
(b) If the limitations on conversion set forth in Section 4(a)(ii) hereof). The number Designated Price of shares of ABI Common Stock issuable upon a conversion hereunder Shares is less than $11.00 and the Closing Equity is at least $5,000,000, then the Exchange Ratio shall be determined by adding increased to equal the sum of (i) quotient, rounded to the quotient obtained by dividing third decimal point, of: (x) the outstanding principal amount product of this Debenture to be converted $11.00 and the Exchange Ratio divided by (y) the Conversion Designated Price. If the Designated Price shall be less than $10.00, then ABI and Murd▇▇▇ ▇▇▇ll in good faith attempt to negotiate a mutually acceptable Merger Consideration for the Murd▇▇▇ ▇▇▇mon Stock; provided, however, that if a mutually agreed upon Merger Consideration is not negotiated within four days following the Determination Date, then Murd▇▇▇ ▇▇▇ terminate this Agreement pursuant to Section 10.1(i) of this Agreement. If the Closing Equity shall be less than $5,000,000, then the Exchange Ratio shall be adjusted as follows: (as defined herein)i) if the Designated Price is $11.00 or more, and then the Exchange Ratio shall be decreased to equal the quotient, rounded to the third decimal point, of (A) the quotient of [Closing Equity multiplied by 2.25, divided by 385,015] divided by (B) 12.169, or (ii) if the amount Designated Price is less than $11.00, then the Exchange Ratio shall be adjusted to equal the quotient, rounded to (I) the product third decimal point, of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1A) the quotient obtained of [Closing Equity multiplied by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding2.25, divided by 385,015] divided by (IIB) 11.00. If the Conversion Price on Closing Equity shall be less than $4,875,000, then ABI and Murd▇▇▇ ▇▇▇ll in good faith attempt to negotiate a mutually acceptable Merger Consideration for the Conversion DateMurd▇▇▇ ▇▇▇mon Stock; provided, providedhowever, that if a mutually agreed upon Merger Consideration is not negotiated within four days following the Company shall have timely elected to pay determination of Closing Equity, then ABI may terminate the interest due on a Conversion Date in cash Agreement pursuant to the terms hereof, subsection (iiSection 10.1(j) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderthis Agreement.
(Bc) Notwithstanding anything Each of the Surviving Corporation common shares, $1.175 par value per share, issued and outstanding immediately prior to the contrary contained herein, if on any Conversion Date:
(1) Effective Time shall remain issued and outstanding from and after the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingEffective Time.
(Cd) This Debenture shall be convertible into shares of Common Stock at the option Each of the Holder, in whole or in part at any time ABI Common Shares issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from time to time, and after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion DateEffective Time." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Conversion. (Aa) This Debenture shall be convertible into shares of Common Stock at Subject to and upon compliance with the option provisions of the HolderFiscal Agency Agreement, in whole or in part a holder of Securities is entitled, at its option, at any time and from time to time, on or after the Original Issue Date (subject to date that is the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum later of (i) the quotient obtained by dividing Exchange Date and (xii) the outstanding date of the effectiveness of the Registration Statement to be filed by the Company under the Securities Act relating to the Common Stock issuable upon conversion of the Restricted Securities (the "Registration Date") and on or before the close of business on April 30, 2004 or in the case of a Security or portion thereof that is called for redemption by the Company, or the holder thereof elects to have such Security or portion thereof redeemed by the Company pursuant to Section 3(d) hereof, then in respect of such Security or such portion thereof until and including, but (unless the Company and the Guarantor default in making the payment due upon redemption) not after, the close of business on the 15th day next preceding the date fixed for redemption (or if such date is not a business day, as described in Section 11 hereof in New York City, then the next succeeding business day), to convert such Security (or any portion of the principal amount thereof which is U.S. $1,000 or an integral multiple thereof), at the principal amount thereof, or of this Debenture such portion, into fully paid and nonassessable shares ("Conversion Shares") (calculated as to be converted and each conversion to the nearest 1/1000 of a share) of common stock, par value $.10 per share of the Company (y) the "Common Stock"), at a Conversion Price equal to U.S. $31.415 aggregate principal PAGE amount of Securities for each Conversion Share (the "Conversion Price") (or at the current adjusted Conversion Price if an adjustment has been made as defined provided herein) by surrender of the Security, or in the case of a Security submitted for redemption pursuant to Section 3(d) hereof, satisfactory evidence of such submission, together with (i) if a Bearer Security, all unmatured coupons and any matured coupons in default appertaining thereto, and if a Registered Security (if so required by the Company or the Fiscal Agent), instruments of transfer in form satisfactory to the Company and the Fiscal Agent, duly executed by the registered holder or by his duly authorized attorney, and (ii) the conversion notice hereon duly executed (x) at the principal corporate trust office of the Fiscal Agent, or at such other office or agency of the Company as may be designated by it for such purpose in New York City, or (y) subject to any laws or regulations applicable thereto and subject to the right of the Company to terminate the appointment of any such conversion agency, at the office of the Principal Paying Agent in London, and if the Securities are listed on the Luxembourg Stock Exchange and so long as listed thereon, Bankers Trust Luxembourg, S.A, 14 Boulevard, F.D. Roosevelt, L-2450 Luxembourg, Luxembourg or ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇encies as the Company may designate. In lieu of issuing shares of Common Stock upon such conversion, the Company may elect, in its sole discretion, to pay cash (including Additional Amounts, if any) in respect of all or a portion of the shares of Common Stock otherwise issuable upon such conversion based on the Market Price of such shares, all as provided in the Fiscal Agency Agreement.
(b) In the case of a conversion after the close of business on a Record Date next preceding any interest payment date and before the opening of business on such interest payment date, the holder of record of a Registered Security at such Record Date is to receive an installment of interest on the interest payment date. No payment or adjustment shall be made upon any conversion for dividends on the Common Stock delivered on conversion. Except as set forth in the first sentence of this subsection (b), accrued interest from the immediately preceding interest payment date until the date of conversion (together with any Additional amounts, if any, thereon) will be paid to the holder within five business days after presentment for conversion on account of any interest accrued on the Securities surrendered for conversion, except that interest on Registered Securities surrendered for conversion after the close of business on a Record Date and before the opening of business on the next succeeding interest payment date shall be paid in an amount equal to (I) the product of (x) interest payable on such interest payment date on the outstanding principal amount being surrendered for conversion. No fractions of this Debenture to shares or scrip representing fractions of shares will be converted and issued or delivered on conversion, but instead of any fractional interest the Company shall pay a cash adjustment as provided in the Fiscal Agency Agreement. Such conversion shall be so effected by the Company, except payment of accrued interest (ytogether with Additional Amounts, if any, thereon) which will be paid by the product Paying Agent in accordance with the provisions for payment of interest (1together with Additional Amounts, if any, thereon) set forth herein. PAGE
(i) In case at any time the quotient obtained by dividing .12 by 360 and (2) Company shall pay or make a dividend or other distribution on any class of capital stock of the number Company in shares of days for which such principal amount was outstandingCommon Stock, divided by (II) the Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced so that the same shall equal the price determined by multiplying such Conversion Date, provided, that if Price by a fraction of which the Company numerator shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderoutstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares of Common Stock constituting such dividend or other distribution, such adjustment to become effective immediately after the opening of business on the day following the date fixed for such determination.
(ii) In the case at any time the Company shall (A) subdivide its outstanding shares of Common Stock, (B) Notwithstanding anything combine its outstanding shares of Common Stock into a smaller number of shares, or (C) issue by reclassification of its shares of Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation) any shares of capital stock, the Conversion Price in effect at the effective date of such subdivision, combination or reclassification shall be proportionately adjusted so that the holder of any Security surrendered for conversion after such time shall be entitled to receive the contrary contained hereinaggregate number and kind of shares which, if on such Security had been converted immediately prior to such time, the holder would have owned upon such conversion and been entitled to receive upon such subdivision, combination or reclassification. Such adjustment shall become effective immediately after the effectiveness of such subdivision, combination or reclassification. Such adjustment shall be made successively whenever any Conversion Date:event listed above shall occur.
(1iii) In case at any time the Company shall fix a record date for the issuance of rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase Common Stock at a price per share less than the current market price per share of Common Stock (determined as provided in paragraph (v) of this subsection (c)) on such record date, the Conversion Price in effect at the opening of business on the day following such record date shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in close of business on such record date plus the number of shares of Common Stock;Stock which the aggregate of the offering price of the total number of shares so offered for subscription or purchase would purchase at such current market price per share of Common Stock and the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following such record date. Such reduction shall be made successively whenever such a record date is fixed; and in the event that such rights or warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion PAGE Price which would then be in effect if such record date had not been fixed.
(2iv) In case at any time the Underlying Shares issuable Company shall fix a record date for such conversion the making of a distribution, by dividend or otherwise, to all holders of its shares if Common Stock, of evidences of its indebtedness or assets (including securities, but excluding any interest payable dividend or distribution referred to in sharesparagraph (i) of this subsection (xc), any rights or warrants referred to in paragraph (iii) are of this subsection (c), and any dividend or distribution paid in cash out of the retained earnings of the Company), then in each such case the Conversion Price in effect after such record date shall be determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, of which numerator shall be the total number of outstanding shares of Common Stock multiplied by the current market price per share of Common Stock (determined as provided in paragraph (v) of this subsection (c)) on such record date, less the fair market value (as determined by the Board of Directors of the Company, whose determination shall be conclusive and described in a statement filed with the Fiscal Agent) of the portion of the assets or evidences of indebtedness so to be distributed, and of which denominator shall be the total number of outstanding shares of Common Stock multiplied by such current market price per share of Common Stock. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that such distribution is not registered for resale pursuant so made, the Conversion Price shall again be adjusted to an effective Underlying Shares Registration Statement be the Conversion Price which would then be in effect if such record date has not been fixed.
(v) For the purpose of any computation under paragraphs (iii) and (yiv) may not of this subsection (c), the current market price per share of Common Stock on any date shall be sold without volume restrictions pursuant deemed to Rule 144(k) promulgated under be the Securities Act average of the Closing Prices (as defined below) for the 15 consecutive trading days upon which the principal trading market for the Common Stock is open and selected by the Company commencing not less than 20 nor more than 30 days before the day in Section 6);
(3) question. The _Closing Price_ for any day shall be the last reported sales prices regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices regular way, in either case on the American Stock Exchange or, if the Common Stock is not or admitted to trading on such exchange, on the principal national securities exchange on which the Common Stock is listed or quoted for admitted to trading or, if not listed or admitted to trading on any national securities exchange, the OTC closing sale price quoted on the Nasdaq National Market, or on a Subsequent Market;if not so quoted, as determined by the Company.
(4vi) The Company may make such adjustments in the Conversion Price, in addition to those required by paragraphs (i), (ii) and, (iii) selected by the Company has failed of this section, as it considers to timely satisfy its conversion obligations hereunder; orbe advisable in order that any event treated for United States Federal income tax purposes as a dividend of stock or stock rights shall not be taxable to the recipients.
(5vii) No adjustment in the issuance Conversion Price shall be required unless such adjustment would require an increase or decrease of at least U.S. $.25 in such Conversion Price; provided, however, that any adjustment which by reason of PAGE this paragraph (vii) is not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this subsection (c) shall be made to the nearest cent or to the nearest 1/1000 of a share, as the case may be.
(d) Whenever the Conversion Price is adjusted and in the event of certain other corporate actions, as herein provided, the Company shall give notice, all as provided in the Fiscal Agency Agreement.
(e) The Company shall file, as soon as practicable following the Closing Date, a shelf registration statement with the United States Securities and Exchange Commission covering the resale of the shares of Common Stock would result in a violation issuable upon conversion of Sections 4(a)(iithe Securities ("Registrable Securities"), then, ; provided that any holder of any Securities or Registrable Securities shall not sell any shares pursuant to such registration statement unless and until it provides to the Company such information as the Company may not pay interest reasonably request for use in kind connection with the identification of such holder as a selling stockholder in such registration statement, or any prospectus included therein, and must pay interest no such sale shall be made by such holder pursuant to such registration statement unless and until such information is included by the Company in cash such registration statement or prospectus. The Company shall in good faith use its best efforts and at its cost to cause such registration statement to be declared effective as promptly as practicable thereafter and to include in such registration statement the information provided by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to a holder as a selling stockholder and shall notify the product of (a) the outstanding principal amount Fiscal Agent of the Debentures effectiveness thereof and agrees to use its best efforts to (i) cause all registrations with, and to obtain any approvals by, any governmental authority under any Federal or state law of the United States that may be converted on required in connection with the conversion of the Securities into Common Stock and the resale thereof, (ii) maintain the effectiveness of such Conversion Date and (bregistrations until the date that Rule 144(k) under the product Securities Act is available for the resale of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock issuable upon conversion of the Restricted Securities (or other securities issuable upon conversion of the Securities) and (iii) to list the shares of Common Stock required to be issued or delivered upon conversion of Securities (or other securities issuable upon conversion of the Securities) prior to such issue or delivery on such national securities exchange or automated over-the-counter trading market where such Common Stock is listed or traded at the option time of such delivery. The Company and the HolderGuarantor, in whole or in part at any time jointly and from time severally, shall, without limitation as to time, after the Original Issue Date (subject indemnify and hold harmless, to the limitations on conversion set forth fullest extent permitted by law, each holder of Registrable Securities, the officers, directors and agents and employees of each of them, each person who controls such holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended) and the officers, directors, agents and employees of any such controlling person, from and against all losses, claims, damages, liabilities, costs (including, without limitation, the costs of preparation and attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering any such registration statement, or related prospectus or in any amendment PAGE or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are based solely upon information, if any, furnished in writing to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debentureby such holder expressly for use therein; provided, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and that the Company shall maintain records showing not be liable to any holder of Registrable Securities to the principal amount converted and the date extent that any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if either (a)(i) such conversions. In the event of any dispute holder failed to send or discrepancy, the records deliver as required a copy of the Holder shall be controlling final prospectus with or prior to the delivery of written confirmation of the sale by such holder of a Registrable Security to the person asserting the claim from which such Losses arise and determinative in (ii) the absence of manifest error.prospectus would have completely corrected such untrue statement or alleged untrue statement or such om
Appears in 1 contract
Conversion. (A) This Debenture shall be convertible into shares 6.1 At the Borrower’s election, in lieu of Common Stock at repayment, the option amount of the Holderdrawn down Loan (including the principal thereof and any accrued but unpaid interest thereon) may be converted, in whole or but not in part at any time except as provided in Clause 6.6, into a number of fully paid and from time non-assessable Shares, subject to timeand determined as provided in Clause 6.3 below, after as of the Original Issue Date (date of, and in all cases subject to the limitations on conversion set forth consummation of, a Qualified Offering provided, that no Event of Default shall at the time exist and be continuing.
6.2 In order to elect to convert the Loan into Shares in Section 4(a)(iiconnection with a Qualified Offering in accordance with this Clause 6, the Borrower shall give Lender notice of such election not less than five (5) hereof). The Business Days prior to the anticipated Conversion Date, specifying the anticipated Conversion Date, the anticipated aggregate proceeds to the Borrower and the other anticipated terms of the Qualified Offering.
6.3 Subject to Clause 6.6, the number of shares of Common Stock Shares or Units issuable upon a conversion hereunder of the Loan shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and the Loan, plus any accrued but unpaid interest thereon, divided by (y) the product lowest price per Share or Unit paid by investors for Shares or Units in the Qualified Offering before deducting underwriting commissions and discounts, placement agent commissions and fees, and other expenses of (1) the quotient obtained by dividing .12 by 360 and (2) Qualified Offering. In lieu of any fractional Share or Unit to which the number of days for which such principal amount was outstandingLender would otherwise be entitled, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of such fraction multiplied by the price of such Share or Unit in the Qualified Offering.
6.4 Subject to Clause 6.6, upon the consummation of a Qualified Offering, in the event that the Borrower does not elect to convert the Loan into Shares in accordance with Clause 6.1: (a) the outstanding principal amount of Availability Period shall terminate and the Debentures Lender will not be required to be converted on such Conversion Date make any further Advances; and (b) upon the product of Repayment Date (x) or any other date on which the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall Loan is to be convertible into shares of Common Stock at the option of the Holderrepaid, in whole or in part at part), the Lender shall have the right to elect to receive, in its sole discretion, in lieu of any time and from time to timecash repayment of the Loan, after a number of Shares (or Units, if Units are sold in the Original Issue Date (subject Qualified Offering) equal to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture the Loan being so repaid, divided by the lowest price per Share or Unit paid by investors for Shares or Units in the Qualified Offering before deducting underwriting commissions and all accrued discounts, placement agent commissions and unpaid interest thereon subsequent fees, and other expenses of the Qualified Offering. In lieu of any fractional Share or Unit to which the Lender would otherwise be entitled, the Borrower shall pay cash equal to the conversion at issueproduct of such fraction multiplied by the price of such Share or Unit in the Qualified Offering. The date on which a Conversion Notice is delivered is Borrower shall give the "Conversion Date." Unless Lender written notice five (5) Business Days prior to making any repayment of the Holder is converting the entire principal amount outstanding Loan under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company Agreement in order to effect conversions. Subject permit the Lender to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have make such an election.
6.5 Upon the effect conversion of lowering the outstanding principal amount of this Debenture plus all accrued Loan and unpaid interest thereon in an amount equal the issuance to the applicable conversionLender of the Shares or Units in accordance in accordance with Clause 6, which shall be evidenced by notations made and upon delivery to the Lender of a valid share certificate for the Shares and other securities comprising Units if Units are issued, (or in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date lieu of such conversions. In the event certificates, evidence of any dispute or discrepancy, direct registration in the records of the Holder transfer agent in the case of the Shares and records of Borrower in the case of other securities comprising Units), this Agreement shall terminate and the Borrower shall be controlling forever released from its obligations under this Agreement, except to the extent that any obligations of the Borrower under Clauses 7 (Tax), 9 (Liability), 10 (Payments) and determinative 13 (Miscellaneous) shall survive such termination and remain be valid and effective.
6.6 If under the rules of the NYSE American or any other stock exchange on which the Shares are listed (an “Applicable Exchange”), approval by the stockholders of the Borrower would be required in connection with the issuance of Shares or Units upon any conversion under this Clause 6, then unless and until such stockholder approval has been obtained, the maximum amount of the Loan (including principal and any accrued interest) that may be converted into Shares or Units shall not exceed an amount that would result in the absence number of manifest errorShares (including Shares issued separately or as a part of a Unit) so issued (together with Shares issued upon the consummation of a Qualified Offering in the case of a conversion under Clause 6.1 or that is otherwise deemed by the Applicable Exchange to be in connection with the consummation of the Qualified Offering) exceeding 19.9% of the number of Shares outstanding immediately before such conversion (and before consummation of the Qualified Offering in the case of a conversion under Clause 6.1 or that is otherwise deemed by the Applicable Exchange to be in connection with the consummation of a Qualified Offering).
Appears in 1 contract
Conversion. (A) This Debenture Holders of shares of Series E Preferred Stock shall be convertible have the right to convert all or a portion of such shares into shares of Common Stock as follows:
(a) Subject to and upon compliance with the provisions of this Section (7), a holder of shares of Series E Preferred Stock shall have the right, at his, her or its option, at any time on or after the option of the HolderInitial Convertibility Date, to convert such shares, in whole or in part part, into the number of fully paid and nonassessable shares of Common Stock (calculated as to each conversion to the nearest 1/100th of a share) obtained by dividing the aggregate Liquidation Preference of such shares by the Conversion Price and by surrender of such shares so to be converted by the holder thereof, such surrender to be made in the manner provided in paragraph (b) of this Section (7); provided, however, that the right to convert shares called for redemption pursuant to Section (5) shall terminate at 5:00 p.m. New York time on the Redemption Date for such redemption, unless the Corporation shall default in making prompt payment of the amount payable upon such redemption. Any share of Series E Preferred
(b) In order to exercise the conversion right, the holder of each share of Series E Preferred Stock to be converted shall surrender the certificate representing such share, duly endorsed or assigned to the Corporation or in blank, at the office of the Transfer Agent or, if no Transfer Agent has been appointed by the Corporation, at the principal office of the Corporation, accompanied by written notice to the Corporation that the holder thereof elects to convert its shares of Series E Preferred Stock or a specified portion thereof. Unless the shares issuable on conversion are to be issued in the same name as the name in which such share of Series E Preferred Stock is registered, each share surrendered for conversion shall be accompanied by instruments of transfer, in form satisfactory to the Corporation, duly executed by the holder or such holder's duly authorized attorney and an amount sufficient to pay any time transfer or similar tax (or evidence reasonably satisfactory to the Corporation demonstrating that such taxes have been paid). Holders of shares of Series E Preferred Stock at the close of business on a dividend payment record date shall be entitled to receive the dividend payable on such shares (except that holders of shares called for redemption on a Redemption Date between such record date and from time the Dividend Payment Date shall not be entitled to time, receive such dividend on such Dividend Payment Date) on the corresponding Dividend Payment Date notwithstanding the conversion thereof following such dividend payment record date and prior to such Dividend Payment Date. As promptly as practicable after the Original Issue Date surrender of certificates for shares of Series E Preferred Stock as aforesaid, the Corporation shall issue, pay and deliver at such office to such holder, or on his, her or its written order, (subject to i) a certificate or certificates for the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of full shares of Common Stock issuable upon a the conversion hereunder shall be determined by adding of such shares in accordance with the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount provisions of this Debenture to be converted and Section (y) the Conversion Price (as defined herein7), and (ii) if less than the amount equal to (I) full number of shares of Series E Preferred Stock evidenced by the product surrendered certificates is being converted, a new certificate or certificates, of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) like tenor, for the number of days for shares evidenced by such surrendered certificates less the number
(c) No fractional shares or scrip representing fractions of shares of Common Stock shall be issued upon conversion of the Series E Preferred Stock. Instead of any fractional interest in a share of Common Stock which would otherwise be deliverable upon the conversion of a share of Series E Preferred Stock, the Corporation shall pay to the holder of such principal share an amount was outstanding, divided in cash (computed to the nearest cent) equal to such fraction of a share multiplied by (II) the Conversion Current Market Price of one share of Common Stock on the Conversion DateTrading Day immediately preceding the date of conversion. If more than one share shall be surrendered for conversion at one time by the same holder, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of full shares of Common Stock issuable upon a conversion hereunderthereof shall be computed on the basis of the aggregate number of shares of Series E Preferred Stock so surrendered.
(Bd) Notwithstanding anything The Conversion Price shall be adjusted from time to the contrary contained herein, if on any Conversion Datetime as follows:
(1i) In case the Corporation shall after the Issue Date (A) pay a dividend or make a distribution on its Common Stock in shares of its Common Stock without making a corresponding dividend or distribution with respect to its Series E Preferred Stock, (B) subdivide its outstanding Common Stock
(ii) In case the Corporation shall issue after the Issue Date (a) options, warrants or other rights to all holders of Common Stock entitling them (for a period expiring within 180 days after the record date mentioned below) to subscribe for or purchase Common Stock at a price per share less than the lower of the Initial Market Price or the Conversion Price (the "Minimum Price") at the record date for the determination of stockholders entitled to receive such options, warrants or other rights or (b) shares of Common Stock (excluding shares of Common Stock issued or issuable as dividends with respect to the Series E Preferred Stock pursuant to paragraph (a) of Section (3) hereof and Common Stock issued or issuable as dividends with respect to the Series F Preferred Stock pursuant to paragraph (a) of Section (3) of the Series F Certificate of Designations) or securities exercisable for (including options, warrants or other rights other than those referred to in clause (a) above and subparagraph (iii) below) or exchangeable or convertible into shares of Common Stock) at a price per share (or having an exercise, exchange or conversion price per share) less than the then current Minimum Price (other than securities issued in a transaction in which a pro rata share of such securities have been reserved by the Corporation for distribution to the holders of Series E Preferred Stock upon conversion), then in each such case the Conversion Price in effect immediately prior thereto shall be adjusted to equal the price determined by multiplying (I) the Conversion Price in effect immediately prior to the date of issuance of such options, warrants, other rights or shares of Common Stock (or securities exercisable for or exchangeable or convertible into shares of Common Stock) by (II) a fraction, the numerator of which shall be the sum of (A) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading outstanding on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the date of issuance of such options, warrants or other rights or shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days or securities exercisable for which such principal amount was outstanding.
(C) This Debenture shall be or exchangeable or convertible into shares of Common Stock) (without giving effect to any such issuance) and (B), in the case of (a) above, the number of shares which the aggregate proceeds from the exercise of such options, warrants or other rights for Common Stock or, in the case of (b) above, the number of shares which the aggregate consideration receivable by the Corporation for the total number of shares of Common Stock (or securities exercisable for or exchangeable or convertible into shares of Common Stock) so issued would purchase at the option Minimum Price in effect immediately prior to the date of issuance, and the denominator of which shall be the sum of (A) the number of shares of Common Stock outstanding on the date of issuance of such options, warrants or other rights or shares of Common Stock (or securities exercisable for or exchangeable or convertible into Common Stock) (without giving effect to any such issuance) and (B), in the case of clause (a) above, the number of additional shares of Common Stock offered for subscription or purchase or, in the case of clause (b) above, the number of shares of Common Stock so issued or into which the exercisable, exchangeable or convertible securities may be exercised, exchanged or converted. Such adjustment shall be made successively whenever any such options, warrants or other rights or shares of Common Stock (or securities exercisable for or exchangeable or convertible into Common Stock) are issued, and shall become effective immediately after such record date or, in the case of the Holder, in whole or in part at any time and from time to timeissuance of Common Stock, after the Original Issue Date date of issuance thereof (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially or in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth case of securities exercisable for or exchangeable or convertible into shares of Common Stock, the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is holders may first exercise, exchange or convert the "Conversion Date." Unless same in accordance with the Holder is converting respective terms thereof). In determining whether any options, warrants or other rights entitle the entire principal amount outstanding under this Debenture, holders of Common Stock to subscribe for or purchase shares of Common Stock at less than the Holder is not be required Minimum Price in effect immediately prior to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversionsissuance, and in determining the aggregate offering price of shares of Common Stock (or securities exercisable for or exchangeable or convertible into shares of Common Stock), there shall be taken into account any net consideration received or receivable by the Corporation upon issuance and upon exercise of such options, warrants or other rights or upon issuance of shares of Common Stock (or securities exercisable for or exchangeable or convertible into shares of Common Stock), the value of such consideration, if other than cash, to be determined by the Board of Directors in good faith or, if higher, the aggregate exercise, exchange or conversion price set forth in such exercisable, exchangeable or convertible securities. The aggregate consideration received by the Corporation in connection with the issuance of shares of Common Stock or of options, warrants or other rights or securities exercisable for or exchangeable or convertible into shares of
(iii) In case the Corporation shall distribute to all holders of its Common Stock as a class any shares of capital stock of the Corporation (other than Common Stock) or evidences of its indebtedness or assets (other than a regular cash dividend that the Board of Directors determines, in good faith, can be maintained by the Corporation for at least four consecutive periods covering not less than one year and that the Board of Directors intends to maintain for at least four consecutive periods covering not less than one year, out of profits or surplus) or options, warrants or other rights to subscribe for or purchase any of its securities (excluding those referred to in subparagraph (ii)(a) above) (any of the foregoing being hereinafter in this subparagraph (iii) called the "Securities"), then in each such case, unless the Corporation elects to reserve shares or other units of such Securities for distribution to the holders of the Series E Preferred Stock upon the conversion of the shares of Series E Preferred Stock so that any such holder converting shares of Series E Preferred Stock will receive upon such conversion, in addition to the shares of the Common Stock to which such holder is entitled, the amount and kind of such Securities which such holder would have received if such holder had, immediately prior to the record date for the distribution of the Securities, converted his or her shares of Series E Preferred Stock into Common Stock (such election to be based upon a determination by the Board of Directors that such reservation will not materially adversely affect the interests of any holder of Series E Preferred Stock in any such reserved Securities), the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying (I) the Conversion Price in effect immediately prior to the date of such distribution by (II) a fraction, the numerator of which shall be the Current Market Price per share of the Common Stock on the record date mentioned below less the fair market value (as determined by the Board of Directors, whose determination shall, if made in good faith, be conclusive) of the portion of the capital stock or assets or evidences of indebtedness so distributed or of such rights or warrants applicable to one share of Common Stock, and the denominator of which shall be the Current Market Price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in paragraph (h) below, after the record date for the determination of stockholders entitled to receive such distribution.
(iv) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this subparagraph (iv) are not required to be made shall be carried forward and taken into account in any subsequent adjustment; and provided further that any adjustment shall be required and made in accordance with the provisions of this Section (7) (other than this subparagraph (iv)) not later than such time as may be required in order to preserve the tax-free nature of a distribution to the holders of shares of Common Stock. All calculations under this Section (7) shall be made to the nearest cent (with $.005 being rounded upward) or to the nearest 1/100 of a share (with .005 of a share being rounded upward), as the case may be. Anything in this paragraph (d) to the contrary notwithstanding, the Corporation shall be entitled, to the extent permitted by law, to make such reductions in the Conversion Price, in addition to those required by this paragraph (d), as it in its discretion shall determine to be advisable in order that any stock dividends, subdivision of shares, distribution of options, warrants or other rights to purchase stock or securities, or a distribution of other assets (other than cash dividends) hereafter made by the Corporation to its stockholders shall not be taxable.
(v) No adjustment in the Conversion Price shall be required in the event of any dispute dividend, distribution or discrepancyissuance to holders of shares of Common Stock pursuant to subparagraph (i), (ii) or (iii) above if holders of shares of Series E Preferred Stock have received the records same dividend, distribution or issuance in accordance with Section (3) hereof.
(e) In case the Corporation shall be a party to any transaction (including without limitation a merger, consolidation, sale of all or substantially all of the Holder Corporation's assets or recapitalization of the Common Stock and excluding any transaction as to which paragraph (d)(i) of this Section (7) applies) (each of the foregoing being referred to as a "Transaction"), in each case as a result of which shares of Common Stock shall be controlling converted into the right to receive stock, securities or other property (including cash or any combination thereof), each share of Series E Preferred Stock which is not converted into the right to receive stock, securities or other property in connection with such Transaction shall thereafter be convertible into the kind and determinative in amount of shares of stock and other securities and property receivable (including cash) upon the absence consummation of manifest error.such Transaction by a holder of that number of shares or fraction thereof of Common Stock into which one share of Series E Preferred Stock was convertible immediately prior to such Transaction. The Corporation shall use reasonable efforts
(f) If:
(i) the Corporation shall declare a dividend (or any other distribution) on the Common Stock (other than a regular cash dividend that the Board of Directors determines can be maintained by the Corporation for at least four consecutive periods covering at least one year and that the Board of Directors intends to maintain for at least four consecutive periods covering at least one year out of profits or surplus); or
(ii) the Corporation shall authorize the granting to the holders of the Common Stock of rights or warrants to subscribe for or purchase any shares of any class or any options, warrants or other rights; or (iii) there shall be any reclassification of the Common Stock (other than an event to which paragraph (d)(i) of this Section (7) applies) or any consolidation or merger to which the Corporation is a party and for which approval of any stockholders of the Corporation is required, or the sale or transfer of all or substantially all of the assets of the Corporation, then the Corporation shall cause to be filed with the Transfer Agent and shall cause to be mailed to the holders of shares of the Series E Preferred Stock at their addresses as shown on the stock recor
Appears in 1 contract
Conversion. (A) This Debenture shall be convertible Subject to the best price guarantees and anti-dilutive rights set forth below, the CFST hereby agrees to immediately convert all of its Class A Bonds into shares of Colmena's Common Stock at the option of the HolderStock, in whole or accordance with their terms, which Colmena hereby represents will result in part at any time and from time to time, after the Original Issue Date (subject issuance to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation CFST of the number of shares of Common Stock issuable upon Colmena's common stock set forth in Exhibit 2 (A) annexed hereto and made a part hereof, the conversion hereunderbeing effected without registration under the Securities Act or the Florida Act, based on the exemption from registration provided by Section 4(6) of the Securities Act and Section 517.061(11) of the Florida Act.
(B) Notwithstanding anything Subject to the contrary contained hereinbest price guarantees and anti-dilutive rights set forth below, if on any Conversion Date:
(1) the number of CFST hereby converts the Colmena Debt into shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Colmena Common Stock;
, at a conversion price of $0.01 per share, as set forth below on Exhibit 2 (2) B), the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold transaction being effected without volume restrictions pursuant to Rule 144(k) promulgated registration under the Securities Act (as defined in Section 6);
(3) or the Common Stock is not listed or quoted for trading Florida Act, based on the OTC or on a Subsequent Market;
(4exemption from registration provided by Section 4(6) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date Securities Act and (bSection 517.061(11) of the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingFlorida Act.
(C) This Debenture shall be convertible into shares of Common Stock at In consideration for the option agreement by the CFST to accelerated conversion of the Holder, in whole or in part at any time Class A Bonds and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date of the Colmena Debt to Colmena common stock, which will result in the issuance of a materially smaller quantity of Colmena common stock to the CFST than would have otherwise been issuable based on which current Colmena business plans, Colmena hereby irrevocably covenants and agrees, as a Conversion Notice is delivered is material inducement to the entry into this Agreement by the CFST, that all of the shares issuable to the CFST pursuant to the terms of this Agreement, including, without limitation, the shares to be issued in exchange for conversion of the Colmena Debt and to be issued on conversion of the Class A Bonds (the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(bCovered Shares"), each Conversion Notice, once givenwhether or not then still owned by the CFST, shall be irrevocable. Conversions hereunder shall have increased by the effect issuance of lowering additional shares of Colmena common stock to the outstanding principal amount CFST, to reflect the issuance of any common stock or common stock purchase rights at a price of less than $0.01 per share (in cash or in the net tangible book value in accordance with GAAP of any assets or services paid therefor) during the 730 days following the execution of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversionAgreement, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.as follows:
Appears in 1 contract
Sources: Conversion Agreement (Colmena Corp)
Conversion. Holders of shares of Series D Preferred Stock shall have the right to convert all or a portion of such shares into shares of Common Stock as follows:
(a) Subject to and upon compliance with the provisions of this Section (7), a holder of shares of Series D Preferred Stock shall have the right, at his, her or its option, at any time after the fifth anniversary of the Issue Date, to convert such shares, in whole or in part, into the number of fully paid and nonassessable shares of Common Stock (calculated as to each conversion to the nearest 1/100th of a share) obtained by dividing the aggregate liquidation preference of such shares by the Conversion Price and by surrender of such shares so to be converted by the holder thereof, such surrender to be made in the manner provided in paragraph (b) of this Section (7); provided, however, that the right to convert shares called for redemption pursuant to Section (5) shall terminate at the close of business on the date fixed for such redemption, unless the Corporation shall default in making prompt payment of the amount payable upon such redemption. Any share of Series D Preferred Stock may be converted, at the request of its holder, in part into Common Stock. If a part of a share of Series D Preferred Stock is converted, then the Corporation will convert such share into the requested shares of Common Stock (subject to paragraph (c) of this Section (7)) and issue a fractional share of Series D Preferred Stock evidencing the remaining interest of such holder.
(b) In order to exercise the conversion right, the holder of each share of Series D Preferred Stock to be converted shall surrender the certificate representing such share, duly endorsed or assigned to the Corporation or in blank, at the office of the Transfer Agent or, if no Transfer Agent has been appointed by the Corporation, at the principal office of the Corporation, accompanied by written notice to the Corporation that the holder thereof elects to convert its shares of Series D Preferred Stock or a specified portion thereof. Unless the shares issuable on conversion are to be issued in the same name as the name in which such share of Series D Preferred Stock is registered, each share surrendered for conversion shall be accompanied by instruments of transfer, in form satisfactory to the Corporation, duly executed by the holder or such holder's duly authorized attorney and an amount sufficient to pay any transfer or similar tax (or evidence reasonably satisfactory to the Corporation demonstrating that such taxes have been paid). Holders of shares of Series D Preferred Stock at the close of business on a dividend payment record date shall be entitled to receive the dividend payable on such shares (except that holders of shares called for redemption on a redemption date between such record date and the dividend payment date shall not be entitled to receive such dividend on such dividend payment date) on the corresponding dividend payment date notwithstanding the conversion thereof following such dividend payment record date and prior to such dividend payment date. As promptly as practicable after the surrender of certificates for shares of Series D Preferred Stock as aforesaid, the Corporation shall issue and shall deliver at such office to such holder, or on his, her or its written order, (i) a certificate or certificates for the number of full shares of Common Stock issuable upon the conversion of such shares in accordance with the provisions of this Section (7), (ii) if less than the full number of shares of Series D Preferred Stock evidenced by the surrendered certificates is being converted, a new certificate or certificates, of like tenor, for the number of shares evidenced by such surrendered certificates less the number of shares being converted, and (iii) any fractional interest in respect of a share of Common Stock arising upon such conversion shall be settled as provided in paragraph (c) of this Section (7). Each conversion shall be deemed to have been effected immediately prior to the close of business on the date on which the certificates for shares of Series D Preferred Stock shall have been surrendered and such notice received by the Corporation as aforesaid, and the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such conversion shall be deemed to have become the holder or holders of record of the shares represented thereby at such time on such date and such conversion shall be at the Conversion Price in effect at such time on such date, unless the stock transfer books of the Corporation shall be closed on that date, in which event such person or persons shall be deemed to have become such holder or holders of record at the close of business on the next succeeding day on which such stock transfer books are open, but such conversion shall be at the Conversion Price in effect on the date upon which such shares shall have been surrendered and such notice received by the Corporation. All shares of Common Stock delivered upon conversion of the Series D Preferred Stock shall upon delivery be duly and validly issued and fully paid and nonassessable.
(c) No fractional shares or scrip representing fractions of shares of Common Stock shall be issued upon conversion of the Series D Preferred Stock. Instead of any fractional interest in a share of Common Stock which would otherwise be deliverable upon the conversion of a share of Series D Preferred Stock, the Corporation shall pay to the holder of such share an amount in cash (computed to the nearest cent) equal to such fraction of a share multiplied by the Current Market Price of one share of Common Stock on the Trading Day immediately preceding the date of conversion. If more than one share shall be surrendered for conversion at one time by the same holder, the number of full shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares of Series D Preferred Stock so surrendered.
(d) The Conversion Price shall be adjusted from time to time as follows:
(i) In case the Corporation shall after the Issue Date (A) This Debenture pay a dividend or make a distribution on its Common Stock in shares of its Common Stock, (B) subdivide its outstanding Common Stock into a greater number of shares, (C) combine its outstanding Common Stock into a smaller number of shares or (D) issue any shares of capital stock by reclassification of its Common Stock, the Conversion Price in effect immediately prior thereto shall be adjusted so that the holder of any share of Series D Preferred Stock thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock of the Corporation which such holder would have owned or have been entitled to receive after the happening of any of the events described above had such share of Series D Preferred Stock been converted immediately prior to the happening of such event or the record date therefor, whichever is earlier. An adjustment made pursuant to this subparagraph (i) shall become effective immediately after the close of business on the record date in the case of a dividend or distribution (except as provided in paragraph (h) below) and shall become effective immediately after the close of business on the record date in the case of a subdivision, combination or reclassification.
(ii) In case the Corporation shall issue after the Issue Date (a) options, warrants or other rights to all holders of Common Stock entitling them (for a period expiring within 180 days after the record date mentioned below) to subscribe for or purchase Common Stock at a price per share less than the Conversion Price at the record date for the determination of shareholders entitled to receive such options, warrants or other rights or (b) shares of Common Stock or securities exercisable for (including options, warrants or other rights other than those referred to in clause (a) above and subparagraph (iii) below) or exchangeable or convertible into shares of Common Stock at a price per share (or having an exercise, exchange or conversion price per share) less than the option then current Conversion Price (other than securities issued in a transaction in which a pro rata share of such securities have been reserved by the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject Corporation for distribution to the limitations on conversion set forth holders of Series D Preferred Stock upon conversion), then in Section 4(a)(iieach such case the Conversion Price in effect immediately prior thereto shall be adjusted to equal the price determined by multiplying (I) hereof). The number the Conversion Price in effect immediately prior to the date of issuance of such options, warrants or other rights or shares of Common Stock issuable upon (or securities exercisable for or exchangeable or convertible into shares of Common Stock) by (II) a conversion hereunder fraction, the numerator of which shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1A) the number of shares of Common Stock at outstanding on the time authorizeddate of issuance of such options, unissued and unreserved warrants or other rights or shares of Common Stock (or securities exercisable for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in exchangeable or convertible into shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (xwithout giving effect to any such issuance) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (yB), in the case of (a) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under above, the Securities Act (as defined in Section 6);
(3) number of shares which the aggregate proceeds from the exercise of such options, warrants or other rights for Common Stock is not listed or quoted or, in the case of (b) above, the number of shares which the aggregate consideration receivable by the Corporation for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance total number of such shares of Common Stock (or securities exercisable for or exchangeable or convertible into shares of Common Stock) so issued would result purchase at the Conversion Price in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal effect immediately prior to the product date of issuance, and the denominator of which shall be the sum of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (yA) the number of days shares of Common Stock outstanding on the date of such options, warrants or other rights or shares of Common Stock (or securities exercisable for or exchangeable or convertible into Common Stock) (without giving effect to any such issuance) and (B), in the case of clause (a) above, the number of additional shares of Common Stock offered for subscription or purchase or, in the case of clause (b) above, the number of shares of Common Stock so issued or into which such principal amount was outstanding.
(C) This Debenture the exercisable, exchangeable or convertible securities may be exercised, exchanged or converted. Such adjustment shall be made successively whenever any such options, warrants or other rights or shares of Common Stock (or securities exercisable for or exchangeable or convertible into Common Stock) are issued, and shall become effective immediately after such record date or, in the case of the issuance of Common Stock, after the date of issuance thereof (or in the case of securities exercisable for or exchangeable or convertible into shares of Common Stock, the date on which holders may first exercise, exchange or convert the same in accordance with the respective terms thereof). In determining whether any options, warrants or other rights entitle the holders of Common Stock to subscribe for or purchase shares of Common Stock at less than the Conversion Price in effect immediately prior to the date of such issuance, and in determining the aggregate offering price of shares of Common Stock (or securities exercisable for or exchangeable or convertible into shares of Common Stock), there shall be taken into account any net consideration received or receivable by the Corporation upon issuance and upon exercise of such options, warrants or other rights or upon issuance of shares of Common Stock (or securities exercisable for or exchangeable or convertible into shares of Common Stock), the value of such consideration, if other than cash, to be determined by the Board of Directors in good faith or, if higher, the aggregate exercise, exchange or conversion price set forth in such exercisable, exchangeable or convertible securities. The aggregate consideration received by the Corporation in connection with the issuance of shares of Common Stock or of options, warrants or other rights or securities exercisable for or exchangeable or convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount deemed to be equal to the applicable sum of the aggregate net offering price of all such securities plus the minimum aggregate amount, if any, payable upon the exercise of such options, warrants or other rights and conversion of any such exercisable, exchangeable or convertible securities into shares of Common Stock.
(iii) In case the Corporation shall distribute to all holders of its Common Stock as a class any shares of capital stock of the Corporation (other than Common Stock) or evidences of its indebtedness or assets (other than a regular cash dividend that the Board of Directors determines, in good faith, can be maintained by the Corporation for at least four consecutive periods covering not less than one year and that the Board of Directors intends to maintain for at least four consecutive periods covering not less than one year, out of profits or surplus) or options, warrants or other rights to subscribe for or purchase any of its securities (excluding those referred to in subparagraph (ii)(a) above) (any of the foregoing being hereinafter in this subparagraph (iii) called the "Securities"), then in each such case, unless the Corporation elects to reserve shares or other units of such Securities for distribution to the holders of the Series D Preferred Stock upon the conversion of the shares of Series D Preferred Stock so that any such holder converting shares of Series D Preferred Stock will receive upon such conversion, in addition to the shares of the Common Stock to which such holder is entitled, the amount and kind of such Securities which such holder would have received if such holder had, immediately prior to the record date for the distribution of the Securities, converted his or her shares of Series D Preferred Stock into Common Stock (such election to be based upon a determination by the Board of Directors that such reservation will not materially adversely affect the interests of any holder of Series D Preferred Stock in any such reserved Securities), the Conversion Price shall be evidenced adjusted so that the same shall equal the price determined by notations made in multiplying (I) the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and Price in effect immediately prior to the date of such conversions. In the event of any dispute or discrepancydistribution by (II) a fraction, the records numerator of which shall be the Current Market Price per share of the Holder Common Stock on the record date mentioned below less the fair market value (as determined by the Board of Directors, whose determination shall, if made in good faith, be conclusive) of the portion of the capital stock or assets or evidences of indebtedness so distributed or of such rights or warrants applicable to one share of Common Stock, and the denominator of which shall be controlling and determinative the Current Market Price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in paragraph (h) below, after the record date for the determination of stockholders entitled to receive such distribution.
(iv) No adjustment in the absence Conversion Price shall be required unless such adjustment would require an increase or decrease of manifest error.at least 1% in such price; provided, however, that any adjustments which by reason of this subparagraph (iv) are not required to be made shall be carried forward and taken into account in any subsequent adjustment; and provided further that any adjustment shall be required and made in accordance with the provisions of this Section (7) (other than this subparagraph (iv)) not later than such time as may be required in order to preserve the tax-free nature of a distribution to the holders of shares of Common Stock. All calculations under this Section (7) shall be made to the nearest cent (with $.005 being rounded upward) or to the nearest 1/100 of a share (with .005 of a share being rounded upward), as the case may be. Anything in this paragraph (d) to the contrary notwithstanding, the Corporation shall be entitled, to the extent permitted by law, to make such reductions in the Conversion Price, in addition to those required by this paragraph (d), as it in its discretion shall determine to be advisable in order that any stock dividends, subdivision of shares, distribution of rights or warrants to purchase stock or securities, or a distribution of other assets (other than cash dividends) hereafter made
Appears in 1 contract
Conversion. (i) Conversion at Option of Holder.
(A) This Debenture shall ------------------------------ be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii4(a)(iii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if -------- the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) after the Underlying Shares issuable for Interest Effectiveness Date (as defined in Section 6) such conversion (including any interest payable in shares) shares of Common Stock (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6), as determined by counsel to the Company pursuant to a written opinion letter, addressed to the Company's transfer agent in the form and substance acceptable to the applicable Holder and such transfer agent (if the shares of Common Stock are permitted by the Holder to be delivered under this clause (2) prior to the Effectiveness Date (as defined in the Registration Rights Agreement) and thereafter an Underlying Shares Registration Statement shall be declared effective by the Commission, the Company shall, within five Trading Days after the date of such declaration of effectiveness, exchange such shares for shares of Common Stock that are free of restrictive legends of any kind);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii4(a)(iii), then, at the Company may not pay interest option of the Holder, the Company, in kind and must pay interest in cash by deliveringlieu of delivering shares of Common Stock pursuant to Section 4(a)(i)(A)(ii), shall deliver, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering surrendering the Debentures (or such portions thereof) to the Company a completed notice substantially in be converted, together with the form of conversion notice attached hereto as Exhibit A (a "Conversion Notice")) to the --------- ----------------- Company. The Each Conversion Notice shall set forth specify the remaining principal amount of this Debenture Debentures to be converted and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a such conversion is to be effected, which date may not be prior to the date such Conversion Notice is deemed to have been delivered is the hereunder (a "Conversion Date." Unless the Holder "). If no Conversion Date is converting the entire principal amount outstanding under this Debenturespecified in --------------- a Conversion Notice, the Holder Conversion Date shall be the date that such Conversion Notice is not be required to physically surrender this Debenture to the Company in order to effect conversionsdeemed delivered hereunder. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have If the effect Holder is converting less than all of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to represented by the applicable conversion, which shall be evidenced Debenture(s) tendered by notations made in the Holder with the Conversion Notice. The Holder and , or if a conversion hereunder cannot be effected in full for any reason, the Company shall maintain records showing honor such conversion to the extent permissible hereunder and shall promptly deliver to such Holder (in the manner and within the time set forth in Section 4(b)) a new Debenture for such principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest erroras has not been converted.
Appears in 1 contract
Sources: Convertible Debenture (Aquatic Cellulose International Corp)
Conversion. (Aa) This Debenture shall be convertible into shares of Common Stock at At the option of the Holder, this Note shall be convertible into a number of shares of common stock, no par value per share, of the Maker ("Common ------ Stock"), calculated by dividing the principal amount of this Note by $10.00 (the ----- "Conversion Price"), as such Conversion Price is subject to adjustment as set ---------------- forth in whole subsections (d) through (f) below. In addition, this Note shall automatically convert into Common Stock, calculated according to the provisions of this subsection (a), upon the affirmative vote of the holders of an aggregate principal amount representing a majority of the then outstanding principal amount of all Notes.
(b) In connection with any conversion of this Note, all interest accrued and compounded pursuant to Section 1(a)(ii) of this Note, or paid ---------------- through the issuance of additional Notes pursuant to Section 1(a)(i) of this ----------------------- Note shall, at the option of the Maker, (1) be convertible into Common Stock ---- based upon the terms of this Section 3, (2) be paid in part cash or (3) be paid by --------- the issuance of an additional promissory note or notes of equal ranking to this Note and on the same terms and conditions provided for herein, such note to be issued in a principal amount that corresponds with the amount of the interest payment that would otherwise be due upon conversion of this Note (the "Additional Note"); provided, however, that if at the time of the requested ---------------- -------- ------- conversion of this Note, the Maker is unable to issue Common Stock to the Holder, pay such interest in cash or issue an Additional Note because the terms of any time agreement to which the Maker or its parent is a party, including the Credit Agreement and from time to the Subordination Agreement, prohibits all of the same, then this Note shall not be converted into Common Stock at such time, .
(c) As soon as practicable after the Original Issue Date (subject conversion of this Note, the Maker at its expense will cause to be issued in the name of and delivered to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder, a certificate or certificates for the number of shares of Common Stock issuable upon a conversion hereunder to which the Holder shall be determined entitled on such conversion. No fractional shares will be issued on conversion of the Note. If on conversion of the Note a fraction of a share results, the Company will pay the cash value of that fractional share based on the Conversion Price then in effect.
(d) In the event the outstanding shares of Common Stock shall, after date hereof, be further subdivided (split), or combined (reverse split), by adding reclassification or otherwise, or in the sum event of any dividend or other distribution payable on the Common Stock in shares of Common Stock, the Conversion Price in effect immediately prior to such subdivision, combination, dividend or other distribution shall, concurrently with the effectiveness of such subdivision, combination or dividend or other distribution, be proportionately adjusted.
(e) If the Maker at any time shall issue additional shares of Common Stock, by reason of the declaration or payment of a dividend or other distribution on the Common Stock payable in additional shares of Common Stock, then and in each such event, the Conversion Price then in effect shall be decreased as of the time of such issuance or, if such a record date shall have been fixed, as of the close of business on such record date, by multiplying the Conversion Price then in effect by a fraction:
(i) the quotient obtained by dividing (x) numerator of which shall be the total number of shares of Common Stock issued and outstanding principal amount immediately prior to the time of this Debenture to be converted and (y) such issuance or the Conversion Price (as defined herein)close of business on such record date, and and
(ii) the amount equal to (I) denominator of which shall be the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the total number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant shares of Common Stock issued and outstanding immediately prior to the terms hereof, subsection (ii) shall not be used in time of such issuance or the calculation close of business on such record date plus the number of shares of Common Stock issuable upon a conversion hereunderin payment of such dividend or distribution; provided, however, that if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Conversion Price shall be recomputed accordingly as of the close of business on such record date and thereafter the Conversion Price shall be adjusted pursuant to this subsection as of the time of actual payment of such dividends or distributions.
(Bi) Notwithstanding anything If at any time or from time to time after the contrary contained hereindate hereof, the Maker issues or sells, or is deemed by the express provisions of this subparagraph (f) to have issued or sold, Additional Shares of Common Stock (as defined in clause (v) below), other than upon a subdivision or combination of, or as a dividend or other distribution on, the Common Stock as provided in subparagraph (e) above, for an Effective Price (as defined in clause (v) below) less than the then existing Conversion Price (or, if an adjusted Conversion Price shall be in effect by reason of a previous adjustment, then less than such adjusted Conversion Price), the then-existing Conversion Price shall be reduced, as of the opening of business on any the date of such issue or sale, to a price determined by multiplying the then-existing Conversion Date:
Price by a fraction (1i) the numerator of which shall be (A) the number of shares of Common Stock outstanding at the close of business on the day immediately preceding the date of such issue or sale, plus (B) the number of shares of Common Stock that the aggregate consideration received (or by the express provisions hereof deemed to have been received) by the Maker for the total number of Additional Shares of Common Stock so issued would purchase at the Conversion Price in effect immediately prior to such issuance, and (ii) the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance plus the number of Additional Shares of Common Stock so issued; provided, however, that for the purposes of this clause (i), all shares of Common Stock then issuable upon conversion or exercise of then outstanding rights or options to acquire Common Stock or other stocks or securities convertible into Common Stock shall be deemed to be outstanding.
(ii) For the purpose of making any adjustment required under this subparagraph (f), the consideration received by the Maker for any issue or sale of securities shall (A) to the extent it consists of cash be computed at the gross amount of cash received by the Maker before deducting any expenses payable by the Maker and any underwriting or similar commissions, compensation, or concessions paid or allowed by the Maker in connection with such issue or sale, (B) to the extent it consists of property, be computed as determined in good faith by the Board of Directors of the Maker (the "Board"), and (C) if ----- Additional Shares of Common Stock, securities convertible into Additional Shares of Common Stock ("Convertible Securities") or rights or options to purchase ---------------------- either Additional Shares of Common Stock or Convertible Securities are issued or sold together with other stock or securities or other assets of the Maker for a consideration which covers both, be computed as the portion of the consideration so received that may be reasonably determined in good faith by the Board to be allocable to such Additional Shares of Common Stock, Convertible Securities or rights or options, as the case may be.
(iii) For the purpose of the adjustment required under this subparagraph (g), if the Maker issues or sells any rights or options to purchase Common Stock or any Convertible Securities and if the Effective Price of the Additional Shares of Common Stock underlying such rights or options or Convertible Securities is less than the then applicable Conversion Price, then the Maker shall be deemed to have issued at the time authorized, unissued and unreserved for all purposes, of the issuance of such rights or held as treasury stock, is insufficient to pay interest hereunder in shares options or Convertible Securities the maximum number of Additional Shares of Common Stock;
(2) the Underlying Shares Stock issuable upon exercise or conversion thereof and to have received as consideration for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversiontotal amount of the consideration, which if any, received by the Maker for the issuance of such rights or options or Convertible Securities, plus, in the case of such rights or options, the minimum amount of consideration, if any, payable to the Maker upon the exercise of such rights or options, plus, in the case of Convertible Securities, the minimum amounts of consideration, if any, payable to the Maker (other than by cancellation of liabilities or obligations evidenced by such Convertible Securities) upon the conversion thereof. No further adjustment of the Conversion Price, adjusted upon the issuance of such rights, options or Convertible Securities, shall be made as a result of the actual issuance of Additional Shares of Common Stock on the exercise of any such rights, options or the conversion of any such Convertible Securities. If any such rights or options or the conversion privilege represented by any such Convertible Securities shall expire without having been exercised, the Conversion Price, adjusted upon the issuance of such rights, options or Convertible Securities shall be readjusted to the applicable Conversion Price that would have been in effect had an adjustment been made on the basis that the only Additional Shares of Common Stock so issued were the Additional Shares of Common Stock, if any, actually issued or sold on the exercise of such rights or options or rights of conversion of such Convertible Securities, and such Additional Shares of Common Stock, if any, were issued or sold for the consideration actually received by the Maker upon such exercise, plus the consideration, if any, actually received by the Maker for the granting of all such rights or options, whether or not exercised, plus the consideration received for issuing or selling the Convertible Securities actually converted, plus the consideration, if any, actually received by the Maker (other than by cancellation of liabilities or obligations evidenced by notations made in such Convertible Securities) on the conversion of such Convertible Securities.
(iv) For the purpose of the adjustment required under this subparagraph (g), if the Maker issues or sells any rights or options for the purchase of Convertible Securities and if the Effective Price of the Additional Shares of Common Stock underlying such Convertible Securities is less than the then-applicable Conversion Price, the Maker shall be deemed to have issued at the time of the issuance of such rights or options the maximum number of Additional Shares of Common Stock issuable upon conversion of the total amount of Convertible Securities covered by such rights or options and to have received as consideration for the issuance of such Additional Shares of Common Stock an amount equal to the amount of consideration, if any, received by the Maker for the issuance of such rights or options, plus the minimum amounts of consideration, if any, payable to the Maker upon the exercise of such rights or options and plus the minimum amount of consideration, if any, payable to the Maker (other than by cancellation of liabilities or obligations evidenced by such Convertible Securities) upon the conversion of such Convertible Securities. No further adjustment of the Conversion NoticePrice, adjusted upon the issuance of such rights or options, shall be made as a result of the actual issuance of the Convertible Securities upon the exercise of such rights or options or upon the actual issuance of Additional Shares of Common Stock upon the conversion of such Convertible Securities. The Holder and provisions of clause (iii) above for the Company readjustment of the Conversion Price upon the expiration of rights or options or the rights of conversion of Convertible Securities shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancyapply, the records of necessary changes having been made, to the Holder shall be controlling rights, options and determinative Convertible Securities referred to in the absence of manifest errorthis clause (iv).
Appears in 1 contract
Sources: Senior Subordinated Convertible Promissory Note (Hudson Respiratory Care Inc)
Conversion. (A) This Debenture Subject to and upon compliance with the provisions for adjustment set forth in, and upon compliance with the provisions of, this Section B.4. and following the approval of this Section B.4. by the holders of a majority of the Common Stock, each share of this Series shall be convertible into a number of fully paid and nonassessable shares of Common Stock at the option of the HolderStock, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion determined as set forth in Section 4(a)(ii) hereof). The below (said number of shares of Common Stock issuable upon a conversion hereunder (as adjusted from time to time pursuant to the provisions of Section B.4.) being hereinafter referred to as the "B Conversion Ratio"); provided, however, that the right to convert shall be determined terminate at the close of business on the fifth business day prior to the date fixed by adding the sum of Corporation for redemption pursuant to Section B.5.
(i) At any time during the Conversion Period and provided that at such time as the conversion right is exercised the Unistar Group has Net Income, in respect of the fiscal year immediately preceding the fiscal year in which the conversion is being made, equal to or exceeding $1,000,000, the B Conversion Ratio shall equal, for each share of Series B Preferred Stock, the quotient obtained by dividing of (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I1) the product of (xI) the outstanding principal amount excess of this Debenture to be converted such Net Income over $1,000,000 and (yII) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding.79, divided by (II2) the Conversion Price on the Conversion Date100,000, provided, however, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the maximum number of shares of Common Stock issuable upon into which a share of Series B Preferred Stock may be convertible shall be 83.75 ("Maximum B Number"); or (ii) At any time during the Conversion Period and provided that at such time as the conversion hereunder.
(B) Notwithstanding anything to right is exercised the contrary contained hereinsum, if on any Conversion calculated from the Effective Date:
, of (1) 100% of the number cumulative Net Revenues of the Unistar Group and (2) 25% of the cumulative Lottery Revenues, exceeds $50,000,000, the B Conversion Ratio shall equal 83.75 shares of Common Stock at for each share of Series B Preferred Stock; or (iii) At any time during the time authorized, unissued and unreserved for Conversion Period after the sale or transfer of a controlling interest in Unistar or UEI or the sale or assignment of substantially all purposes, of the business or held as treasury stock, is insufficient assets of Unistar or UEI to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock a third party that is not listed or quoted for trading on a wholly-owned Subsidiary of the OTC or on a Subsequent Market;
(4) Corporation, the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such B Conversion Ratio shall equal 83.75 shares of Common Stock would result in a violation for each share of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Series B Preferred Stock. b. Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingProcedure.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Sources: Merger Agreement (Executone Information Systems Inc)
Conversion. (A) This Debenture The holder of this Note shall be convertible into shares of Common Stock have the right, at the option of the Holdersuch holder's Option, in whole or in part at any time and from time to timeconvert, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number terms, conditions and provisions of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) this Note, the outstanding principal amount Principal and any Additional Principal due under this Note, or any portion thereof, into units of this Debenture to be converted and common membership interest (ythe "Units") the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product price of (a) $1,000.00 ("Conversion Price") per unit at any time, on demand. In the outstanding principal amount event any or all of the Debentures Principal or Additional Principal due this Note is to be converted, the holder shall surrender this Note to the Company at any time during usual business hours together with written notice (hereinafter referred to as "Conversion Notice") that the holder elects to convert this Note into Units in accordance with the provisions of this Note and the Loan Agreement, and specifying the name or names in which the Units to be issued upon such conversion shall be registered, together with the addresses and social security numbers, in the case of natural persons, or federal employer identification numbers, in the case of entities, of the persons so named, and, if so required by the Company, accompanied by a written instrument or instruments of transfer in form satisfactory to the Company duly executed by the registered holder or his attorney duly authorized in writing and the persons in whose names the Units are to be issued. In the event this Note is to be converted on such in part only, the Company shall, upon surrender of this Note, execute and deliver to the holder thereof, at the expense of the Company, a new Note in principal amount equal to the unconverted portion of this Note. The Conversion Date Price and the number of Units (or other securities or property) to be
(a) the Units that the Transferee acquires are acquired for investment purposes, and not for resale, (b) the product Transferee can bear the economic risk of his, her or its investment in the Units for an indefinite period of time, (xc) that the Transferee's experience and training in financial affairs is sufficient for the Transferee to evaluate the risks of investing in and holding the Units, (d) the quotient obtained by dividing .12 by 360 Transferee understands and (y) has agreed that there is then no public market for the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder Units and the Company is not under any obligation to facilitate a public market, and (e) the Units may not be transferred or sold without registration (with which the Company has no obligation to participate or permit) or the availability of an exemption from the registration requirements of applicable securities laws. The Units will include an appropriate legend with restrictions on transfer contained in the Company's certificate of incorporation and operating agreement which restrictions shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancyinclude, among other requirements, the records ability of the Holder shall be controlling and determinative in the absence Company to require an opinion of manifest errorcounsel that a proposed transfer does not violate applicable state or federal securities laws prior to permitting any transfer.
Appears in 1 contract
Conversion. (A) This Debenture On the Approval Date, each share of Series B Preferred Stock, shall automatically and without any required action by any Holder, be convertible converted into that number of fully-paid, non-assessable shares of Common Stock at as determined by multiplying the option of the Series B Preferred Stock shares held by such Holder, in whole or in part at any time and from time to timeby the Conversion Rate (a “Conversion”), after with such shares of Common Stock issuable upon conversion of such Series B Preferred Stock on the Original Issue Approval Date (subject rounded up to the limitations nearest whole share of Common Stock on conversion set forth in Section 4(a)(ii) hereof). The number of a per Holder basis (such shares of Common Stock issuable upon a conversion hereunder Conversion, the “Shares”).
(a) Following the Conversion, the Corporation shall promptly issue to each Holder all Shares of Common Stock which such Holder is due in connection with the Conversion (and promptly deliver such Shares to the address of Holder which the Corporation then has on record (a “Delivery”)). The Shares issuable in connection with a Conversion shall be fully-paid, non-assessable shares of Common Stock. Unless the Shares are covered by a valid and effective registration under the Securities Act or the Holder provides a valid opinion from an attorney stating that such Shares can be issued free of restrictive legend, which shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein)Corporation in its sole discretion, and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant prior to the terms hereofissuance date of such Shares, subsection (ii) such Shares shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderissued as Restricted Shares.
(Bb) Notwithstanding anything to The issuance and Delivery by the contrary contained hereinCorporation of the Shares shall fully discharge the Corporation from any and all further obligations under or in connection with the Series B Preferred Stock and shall automatically, if on and without any Conversion Date:
(1) required action by the number of shares of Common Stock at Corporation or the time authorizedHolder, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in the cancellation, termination and invalidation of any outstanding Series B Preferred Stock and Preferred Stock Certificates held by a violation of Sections 4(a)(ii)Holder or his, then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingher or its assigns.
(Cc) This Debenture Without limiting the obligation of each Holder set forth herein (including in the subsequent clause (d)), the Corporation and/or the Corporation’s Transfer Agent shall be convertible into shares of Common Stock at authorized to take whatever action necessary, if any, following the option issuance and Delivery of the Holder, in whole or in part at any time and from time Shares to time, after reflect the Original Issue Date (cancellation of the Series B Preferred Stock subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Conversion, which shall not require the approval and/or consent of any Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"“Cancellation”). The Conversion Notice shall set forth .
(d) Notwithstanding the remaining principal amount of this Debenture above, each Holder, by accepting such Preferred Stock Certificates (or such Series B Preferred Stock shares in book-entry form) hereby covenants that it will, whenever and as reasonably requested by the Corporation and the Transfer Agent, at the Corporation’s sole cost and expense, do, execute, acknowledge and deliver any and all accrued such other and unpaid interest thereon subsequent to further acts, deeds, assignments, transfers, conveyances, confirmations, powers of attorney and any instruments of further assurance, approvals and consents as the conversion at issue. The date on which a Conversion Notice is delivered is Corporation or the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company Transfer Agent may reasonably require in order to effect conversions. Subject to Section 4(b)complete, each Conversion Noticeinsure and perfect the Cancellation, once givenif such may be reasonably required by the Corporation and/or the Corporation’s Transfer Agent, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal including, but not limited to the applicable conversion, which shall be evidenced by notations made delivery to the Corporation of all Preferred Stock Certificates and stock powers with medallion signature guaranty in connection with the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. Cancellation.
(e) In the event that the Delivery of any dispute Shares is unsuccessful and/or any Holder fails to accept such Shares, such Shares shall be held by the Corporation and/or the Transfer Agent in trust (without accruing interest) and shall be released to such Holder upon reasonable evidence to the Corporation or discrepancythe Transfer Agent that such Holder is the legal owner of such Shares, provided that the records Holder’s failure to accept such Shares and/or the Corporation’s inability to Deliver such shares shall in no event effect the validity of the Holder shall be controlling and determinative in the absence of manifest errorCancellation.
Appears in 1 contract
Conversion. (Aa) This Debenture Any holder of Preferred Stock shall be convertible into shares of Common Stock have the right, at the option of the Holderits option, in whole or in part at any time and from time to time, after the Original Issue Date (to convert, subject to the limitations on conversion set forth in terms and provisions of this Section 4(a)(ii) hereof7, any or all of such holder's shares of Preferred Stock into such number of fully paid and non-assessable shares of Common Stock as is equal, subject to Section 7(g). The , to the product of the number of shares of Common Preferred Stock issuable upon a conversion hereunder shall be determined being so converted multiplied by adding the sum quotient of (i) the quotient obtained Purchase Price divided by dividing (x) the outstanding principal amount of this Debenture to be converted and (yii) the Conversion Price (as defined hereinbelow) then in effect. The Conversion Price shall be $1.00, subject to adjustment as set forth in Section 7(d). Such conversion right shall be exercised by the surrender of the shares to be converted to the Corporation at any time during usual business hours at its principal place of business to be maintained by it, accompanied by written notice that the holder elects to convert such shares and specifying the name or names (with address) in which a certificate or certificates for shares of Common Stock are to be issued and (if so required by the Corporation) by a written instrument or instruments of transfer in form reasonably satisfactory to the Corporation duly executed by the holder or its duly authorized legal representative and transfer tax stamps or funds therefor, if required pursuant to Section 7(j). All shares of Preferred Stock surrendered for conversion shall be delivered to the Corporation for cancellation and cancelled by it and no shares of Preferred Stock shall be issued in lieu thereof.
(b) As promptly as practicable after the surrender, as herein provided, of any shares of Preferred Stock for conversion pursuant to Section 7(a), the Corporation shall deliver to or upon the written order of the holder of such shares so surrendered a certificate or certificates representing the number of fully paid and non-assessable shares of Common Stock into which such shares of Preferred Stock may be or have been converted in accordance with the provisions of this Section 7. Subject to the following provisions of this paragraph and of Section 7(d), such conversion shall be deemed to have been made immediately prior to the close of business on the date that such shares of Preferred Stock shall have been surrendered in satisfactory form for conversion, and the Person or Persons entitled to receive the Common Stock deliverable upon conversion of such shares of Preferred Stock shall be treated for all purposes as having become the record holder or holders of such Common Stock at such appropriate time, and such conversion shall be at the Conversion Price in effect at such time; PROVIDED, HOWEVER, that no surrender shall be effective to constitute the Person or Persons entitled to receive the Common Stock deliverable upon such conversion as the record holder or holders of such Common Stock while the share transfer books of the Corporation shall be closed (but not for any period in excess of five days), but such surrender shall be effective to constitute the Person or Persons entitled to receive such Common Stock as the record holder or holders thereof for all purposes immediately prior to the close of business on the next succeeding day on which such share transfer books are open, and such conversion shall be deemed to have been made at, and shall be made at the Conversion Price in effect at, such time on such next succeeding day.
(c) To the extent permitted by law, when shares of Preferred Stock are converted, all dividends declared and unpaid on the Preferred Stock so converted to the date of conversion shall be immediately due and payable and must accompany the shares of Common Stock issued upon such conversion.
(d) The Conversion Price shall be subject to adjustment as follows:
(i) In case the Corporation shall at any time or from time to time (A) pay a dividend or make a distribution (other than a dividend or distribution paid or made to holders of shares of Preferred Stock in the manner provided in Section 2) on the outstanding shares of Common Stock in capital stock (which, for purposes of this Section 7(d) shall include, without limitation, any dividends or distributions in the form of options, warrants or other rights to acquire capital stock) of the Corporation, (B) subdivide the outstanding shares of Common Stock into a larger number of shares, (C) combine the outstanding shares of Common Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Common Stock then, and in each such case, the Conversion Price in effect immediately prior to such event shall be adjusted (and any other appropriate actions shall be taken by the Corporation) so that the holder of any share of Preferred Stock thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other securities of the Corporation that such holder would have owned or would have been entitled to receive upon or by reason of any of the events described above, had such share of Preferred Stock been converted immediately prior to the occurrence of such event. An adjustment made pursuant to this Section 7(d)(i) shall become effective retroactively (A) in the case of any such dividend or distribution, to a date immediately following the close of business on the record date for the determination of holders of Common Stock entitled to receive such dividend or distribution or (B) in the case of any such subdivision, combination or reclassification, to the close of business on the day upon which such corporate action becomes effective.
(ii) In case the amount Corporation shall at any time or from time to time issue shares of Common Stock (or securities convertible into or exchangeable for Common Stock, or any options, warrants or other rights to acquire shares of Common Stock) for a consideration per share less than the Current Market Price per share of Common Stock then in effect at the record date or issuance date, as the case may be (the "Date"), referred to in the following sentence (treating the price per share of any security convertible or exchangeable or exercisable into Common Stock as equal to (IA) the product sum of the price for such security convertible, exchangeable or exercisable into Common Stock plus any additional consideration payable (without regard to any anti-dilution adjustments) upon the conversion, exchange or exercise of such security into Common Stock divided by (B) the number of shares of Common Stock initially underlying such convertible, exchangeable or exercisable security), then, and in each such case, the Conversion Price then in effect shall be adjusted by dividing the Conversion Price in effect on the day immediately prior to the Date by a fraction (x) the outstanding principal amount numerator of this Debenture to which shall be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation sum of the number of shares of Common Stock issuable upon a conversion hereunder.
outstanding on the Date plus the number of additional shares of Common Stock issued or to be issued (Bor the maximum number into which such convertible or exchangeable securities initially may convert or exchange or for which such options, warrants or other rights initially may be exercised) Notwithstanding anything to and (y) the contrary contained herein, if on any Conversion Date:
(1) denominator of which shall be the sum of the number of shares of Common Stock at outstanding on the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in Date plus the number of shares of Common Stock;
Stock which the aggregate consideration for the total number of such additional shares of Common Stock so issued or would be issued upon the conversion, exchange or exercise of such convertible or exchangeable securities or options, warrants or other rights (2plus the aggregate amount of any additional consideration initially payable upon such conversion, exchange or exercise of such security) would purchase at the Current Market Price per share of Common Stock on the Date. Such adjustment shall be made whenever such shares, securities, options, warrants or other rights are issued, and shall become effective retroactively to a date immediately following the close of business (i) in the case of issuance to stockholders of the Corporation, as such, on the record date for the determination of stockholders entitled to receive such shares, securities, options, warrants or other rights and (ii) in all other cases, on the date ("issuance date") of such issuance; PROVIDED that: (A) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale determination as to whether an adjustment is required to be made pursuant to an effective Underlying Shares Registration Statement and (ythis Section 7(d)(ii) may not shall be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) made upon the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii)or such convertible or exchangeable securities, thenoptions, warrants or other rights; (B) if any convertible or exchangeable securities, options, warrants or other rights (or any portions thereof) which shall have given rise to an adjustment pursuant to this Section 7(d)(ii) shall have expired or terminated without the Company may not pay interest in kind and must pay interest in cash exercise thereof and/or if by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount reason of the Debentures terms of such convertible or exchangeable securities, options, warrants or other rights there shall have been an increase or increases, with the passage of time or otherwise, in the price payable upon the exercise or conversion thereof, then the Conversion Price hereunder shall be readjusted (but to be converted no greater extent than originally adjusted) on such Conversion Date and (b) the product basis of (x) eliminating from the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into computation any additional shares of Common Stock corresponding to such convertible or exchangeable securities, options, warrants or other rights as shall have expired or terminated, (y) treating the additional shares of Common Stock, if any, actually issued or issuable pursuant to the previous exercise of such convertible or exchangeable securities, options, warrants or other rights as having been issued for the consideration actually received and receivable therefor and (z) treating any of such convertible or exchangeable securities, options, warrants or other rights which remain outstanding as being subject to exercise or conversion on the basis of such exercise or conversion price as shall be in effect at this time; and (C) no adjustment in the option Conversion Price shall be made pursuant to this Section 7(d)(ii) as a result of any issuance of securities by the HolderCorporation in respect of which an adjustment to the Conversion Price is made pursuant to Section 7(d)(i).
(iii) In the case the Corporation, in whole or in part at any time and or from time to time, after shall take any action affecting its Common Stock similar to or having an effect similar to any of the Original Issue Date actions described in any of Section 7(d)(i) and Section 7(d)(ii), or Section 7(h) (subject but not including any action described in any such Section) and the Board of Directors of the Corporation in good faith determines that it would be equitable in the circumstances to adjust the Conversion Price as a result of such action, then, and in each such case, the Conversion Price shall be adjusted in such manner and at such time as the Board of Directors of the Corporation in good faith determines would be equitable in the circumstances (such determination to be evidenced in a resolution, a certified copy of which shall be mailed to the limitations on conversion set forth in Section 4(a)(iiholders of the Preferred Stock).
(iv) hereof). The Holder shall effect conversions by delivering Notwithstanding anything herein to the Company a completed notice substantially contrary, no adjustment under this Section 7(d) need be made to the Conversion Price unless such adjustment would require an increase or decrease of at least 1% of the Conversion Price then in effect. Any lesser adjustment shall be carried forward and shall be made at the form attached hereto as Exhibit A (a "time of and together with the next subsequent adjustment, which, together with any adjustment or adjustments so carried forward, shall amount to an increase or decrease of at least 1% of such Conversion Notice")Price. The Any adjustment to the Conversion Notice Price carried forward and not theretofore made shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent be made immediately prior to the conversion at issue. The date on which a Conversion Notice is delivered is of any shares of Preferred Stock pursuant hereto.
(v) Notwithstanding anything herein to the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding contrary, no adjustment under this DebentureSection 7(d) shall be made upon the grant of options to employees or directors of the Corporation pursuant to benefit plans approved by the Board of Directors of the Corporation or upon the issuance of shares of Common Stock upon exercise of such options if the exercise price thereof was not less than the Market Price of the Common Stock on the date such options were granted.
(e) If the Corporation shall take a record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or other distribution, and shall thereafter and before the distribution to stockholders thereof legally abandon its plan to pay or deliver such dividend or distribution, then thereafter no adjustment in the Conversion Price then in effect shall be required by reason of the taking of such record.
(f) Upon any increase or decrease in the Conversion Price, then, and in each such case, the Holder is not be required Corporation promptly shall deliver to physically surrender this Debenture each registered holder of Preferred Stock at least 10 Business Days prior to effecting any of the Company foregoing transactions a certificate, signed by the President or a Vice-President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Corporation, setting forth in order to reasonable detail the event requiring the adjustment and the method by which such adjustment was calculated and specifying the increased or decreased Conversion Price then in effect conversions. Subject to Section 4(b), each Conversion Notice, once given, following such adjustment.
(g) No fractional shares or scrip representing fractional shares shall be irrevocableissued upon the conversion of any shares of Preferred Stock. Conversions hereunder If more than one share of Preferred Stock shall have be surrendered for conversion at one time by the effect same holder, the number of lowering full shares of Common Stock issuable upon conversion thereof shall be computed on the outstanding principal amount basis of this Debenture plus all accrued and unpaid interest thereon the aggregate Purchase Price of the shares of Preferred Stock so surrendered. If the conversion of any share or shares of Preferred Stock results in a fraction, an amount equal to such fraction multiplied by the applicable conversionCurrent Market Price of the Common Stock on the Business Day preceding the day of conversion shall be paid to such holder in cash by the Corporation.
(h) In case of any capital reorganization or reclassification or other change of outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value), or in case of any consolidation or merger of the Corporation with or into another Person (other than a consolidation or merger in which the Corporation is the resulting or surviving Person and which does not result in any reclassification or change of outstanding Common Stock), or in case of any sale or other disposition to another Person of all or substantially all of the assets of the Corporation (any of the foregoing, a "Transaction"), the Corporation, or such successor or purchasing Person, as the case may be, shall execute and deliver to each holder of Preferred Stock at least 10 Business Days prior to effecting any of the foregoing Transactions a certificate that the holder of each share of Preferred Stock then outstanding shall have the right thereafter to convert such share of Preferred Stock into the kind and amount of shares of stock or other securities (of the Corporation or another issuer) or property or cash receivable upon such Transaction by a holder of the number of shares of Common Stock into which such share of Preferred Stock could have been converted immediately prior to such Transaction. Such certificate shall provide for adjustments which shall be evidenced by notations made as nearly equivalent as may be practicable to the adjustments provided for in this Section 7. If, in the Conversion Noticecase of any such Transaction, the stock, other securities, cash or property receivable thereupon by a holder of Common Stock includes shares of stock or other securities of a Person other than the successor or purchasing Person and other than the Corporation, which controls or is controlled by the successor or purchasing Person or which, in connection with such Transaction, issues stock, securities, other property or cash to holders of Common Stock, then such certificate also shall be executed by such Person, and such Person shall, in such certificate, specifically acknowledge the obligations of such successor or purchasing Person and acknowledge its obligations to issue such stock, securities, other property or cash to the holders of Preferred Stock upon conversion of the shares of Preferred Stock as provided above. The Holder provisions of this Section 7(h) and the Company any equivalent thereof in any such certificate similarly shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.appl
Appears in 1 contract
Sources: Stock Acquisition Agreement (Vaalco Energy Inc /De/)
Conversion. (A1) This Debenture shall The holder of this Security may convert all or any part of the principal amount of this Security (or any portion thereof equal to $10,000 or any integral multiple of $10,000 in excess thereof), plus all or any accrued and unpaid interest on such principal amount to be convertible converted (although Holder may elect to have accrued but unpaid interest paid in cash), into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, on or after the Original Issue Date (subject to Date, at the limitations on conversion set forth Conversion Price then in Section 4(a)(ii) hereof)effect. The number of shares of Common Stock issuable upon a conversion hereunder of this Security shall be determined by adding dividing the sum principal amount of this Security or portion hereof, plus any accrued and unpaid interest (although Holder may elect to have accrued but unpaid interest paid in cash) on such principal amount to be converted, surrendered for conversion by the Conversion Price in effect on the Conversion Date. The initial conversion price shall be the Conversion Price and shall be subject to adjustment as provided in this Section 3. To convert this Security, the Holder hereof shall send by email or facsimile (or otherwise deliver) a copy of the fully executed conversion notice in the form attached as Exhibit A hereto (the “Conversion Notice”) to the Company. Notwithstanding anything to the contrary set forth herein, upon conversion of any portion of this Security in accordance with the terms hereof, the Holder shall not be required to physically surrender this Security to the Company unless (i) the quotient obtained by dividing (x) the outstanding full principal amount of represented by this Debenture to be Security is being converted and (y) the Conversion Price (as defined herein), and or (ii) the amount equal to Holder has provided the Company with prior written notice (Iwhich notice may be included in a Conversion Notice) the product of (x) the outstanding principal amount requesting reissuance of this Debenture Security upon physical surrender of this Security, provided that the Holder shall instead deliver the documentation to be converted and (ythe Company required by Section 12(f)(3) hereof if it notifies the product Company that this Security has been lost, stolen or destroyed. Upon receipt by the Company of (1) an email or facsimile copy of a Conversion Notice from the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstandingHolder, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected promptly send, via email or facsimile, a confirmation to pay the interest due on Holder stating that the Conversion Notice has been received, the date upon which the Company expects to deliver the Common Stock issuable upon such conversion and the name and telephone number of a contact person at the Company regarding the conversion. On or before the second (2nd) Trading Day following the date of receipt of a Conversion Date Notice, the Company shall (a) provided that the Company’s transfer agent is participating in cash pursuant the DTC (“DTC”) Fast Automated Securities Transfer Program, credit such aggregate number of shares of Common Stock to which the Holder shall be entitled to the terms hereof, subsection Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system or (iib) shall if the Company’s transfer agent is not be used participating in the calculation DTC Fast Automated Securities Transfer Program, instruct the Company’s transfer agent to issue and deliver as promptly as practicable (but in no event later than five (5) Trading Days after such date) to the address as specified in the Conversion Notice, a certificate, registered in the name of the Holder or its designee, in each case, for that number of shares of Common Stock issuable upon conversion of the portion of this Security being converted and (c) if so requested by the Holder, issue a conversion hereunder.
new Security in the form hereof representing the balance of the principal amount hereof not being converted, if any (Bthe applicable date under clauses (a) Notwithstanding anything and (b) above, the “Share Delivery Date”). If so requested in writing by the Holder, the Company shall deliver to the contrary contained hereinHolder physical certificates representing the Common Stock issuable upon conversion which shall, if required by the Purchase Agreement, bear the restrictive legend set forth in Section 5(e) of the Purchase Agreement. If the Company shall (x) fail on any Conversion Date:
(1) or prior to the Share Delivery Date to provide instruction to the Company’s transfer agent to issue and deliver a certificate to the Holder or credit the Holder’s balance account with DTC for the number of shares of Common Stock to which the Holder is entitled upon the Holder’s conversion of any principal amount and accrued interest thereon or on any date of the Company’s obligation to instruct the Company’s transfer agent to deliver shares of Common Stock as contemplated pursuant to clause (ii) below or (y) otherwise fail to convert this Note in accordance with its terms (any such event under clauses (x) and (y), a “Conversion Failure”), and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) Common Stock to deliver in satisfaction of a sale by the Holder of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (the “Buy-In Price”), at which point the time authorized, unissued Company’s obligation to issue and unreserved deliver such certificate or credit the Holder’s balance account with DTC for all purposesthe shares of Common Stock to which the Holder is entitled upon the Holder’s conversion of the applicable principal amount and accrued interest thereon shall terminate, or held as treasury stock, is insufficient (ii) promptly honor its obligation to deliver by instructing the Company’s transfer agent to deliver to the Holder a certificate or certificates representing such Common Stock and pay interest hereunder cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (1) such number of shares of Common Stock;, times (2) the closing bid price of the Common Stock on the Conversion Date.
(2) Except as provided herein, the Underlying Shares issuable for such conversion (including Holder is not entitled to any interest payable in shares) (x) are not registered for resale rights of a holder of Common Stock until the Holder has delivered a Conversion Notice, and only to the extent this Security is deemed to have been converted into Common Stock pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in this Section 6);3.
(3) The Person or Persons entitled to receive the shares of Common Stock is not listed issuable upon a conversion of this Security shall be treated for all purposes as the record holder or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance holders of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, on the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount irrespective of the Debentures to be converted on date such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option issuable upon such conversion of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject Security are credited to the limitations on Holder’s account with DTC or the date of delivery of the certificates evidencing such shares of Common Stock, as the case may be.
(4) If this Security is physically surrendered for conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to Security is greater than the applicable conversionportion of this Security being converted, which shall be evidenced by notations made in the Conversion Notice. The Holder and then the Company shall maintain records showing as soon as practicable after receipt of this Security and at its own expense, issue and deliver to the Holder a new Security representing the outstanding principal amount converted and the date other amounts not converted.
(5) The Company will not issue fractional shares of such conversionsCommon Stock upon conversion of this Security. In the event of any dispute or discrepancylieu thereof, the records Company shall round such fraction of a share of Common Stock to the nearest whole share.
(6) The Company shall, if the Holder shall be controlling and determinative so elects, deliver the Common Stock issuable upon conversion of this Security to any third party designated in writing by the absence of manifest errorHolder.
Appears in 1 contract
Sources: Convertible Note Purchase and Credit Facility Agreement (Aehr Test Systems)
Conversion. 5.1 Where either (Ai) This Debenture shall be convertible into shares the volume weighted average price of Common Stock the ADSs on the NASDAQ Global Select market is at or above USD 3.24 for any five consecutive NASDAQ trading days or (ii) at the option discretion of the Holder, in whole or in part at any time and Noteholders from time to time, after upon written notice (in each instance, a “Conversion Notice”) from such Noteholders to the Original Issue Date Company (in each case, a “Conversion Event”) then, subject to the limitations terms of clause 6, on conversion set forth in Section 4(a)(ii) hereof). The number the third NASDAQ trading day following the occurrence of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of Conversion Event (ithe “Conversion Date”) the quotient obtained Notes held by dividing each Noteholder shall automatically, and without any further action on the part of the Noteholder, convert into ADSs (xthe “Conversion Shares”) in the outstanding manner set out in this clause 5.
5.2 Subject to clauses 6 and 10, on the Conversion Date the principal amount of this Debenture to Notes then held by each Noteholder shall be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the into a number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of the principal value of such Noteholder’s outstanding Notes divided by USD 3.24 (a) “Conversion Price”). When issued, the outstanding principal amount of Ordinary Shares underlying the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture Shares shall be convertible into shares of Common Stock at the option of the Holderduly authorised, in whole be free from pre-emption or in part at any time and from time to timesimilar rights, after the Original Issue Date be freely transferable (subject to the limitations terms of the articles of association of the Company and applicable law), be validly allotted and issued and fully paid, rank pari passu in all respects with, and be identical to, each other and be free from any encumbrance.
5.3 No fractional ADSs or scrip representing fractions of ADSs will be delivered on a conversion set forth in Section 4(a)(ii) hereof). The Holder of the Notes and the number of shares issuable to any Noteholder shall effect conversions by delivering be rounded down to the Company a completed notice substantially in nearest whole ADS.
5.4 Upon the form attached hereto as Exhibit A (a "allotment and issue of the Ordinary Shares underlying the Conversion Notice"). The Conversion Notice shall set forth Shares pursuant to this clause 5: 5.4.1 the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, Notes converted shall be irrevocable. Conversions hereunder shall deemed to have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon been repaid in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorfull; 5.
Appears in 1 contract
Sources: Redeemable Unsecured Convertible Loan Note (Trinity Biotech PLC)
Conversion. (Aa) Conversion at Option of Holder.
(i) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (as det 12 fined in Section 5) (subject to the limitations on conversion set forth in Section 4(a)(ii3(b) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) equals the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and by (y) the Conversion Price (as defined hereinin Section 3(c)(i), and ). The Obligor shall deliver Common Stock certificates to the Holder prior to the Fifth (ii5th) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Trading Day after a Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(Bii) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
: (1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay principal and interest hereunder in shares of Common Stock;
; (2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
; (43) the Company Obligor has failed to timely satisfy its conversion obligations hereunderconversion; or
or (54) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(iiSection 3(b), then, at the Company may not pay interest option of the Holder, the Obligor, in kind and must pay interest in cash by deliveringlieu of delivering shares of Common Stock pursuant to Section 3(a)(i), shall deliver, within three (3) Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on plus any interest due therein divided by the Conversion Price, chosen by the Holder, and multiplied by the highest closing price of the stock from date of the conversion notice till the date that such cash payment is made. Further, if the Obligor shall not have delivered any cash due in respect of conversion of this Debenture or as payment of interest thereon by the fifth (5th) Trading Day after the Conversion Date and (b) Date, the product of (x) Holder may, by notice to the quotient obtained by dividing .12 by 360 and (y) Obligor, require the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into Obligor to issue shares of Common Stock at pursuant to Section 3(c), except that for such purpose the option Conversion Price applicable thereto shall be the lesser of the Holder, in whole or in part at any time Conversion Price on the Conversion Date and from time to time, after the Original Issue Date (Conversion Price on the date of such Holder demand. Any such shares will be subject to the limitations on conversion set forth in Section 4(a)(iiprovisions of this Section.
(iii) hereof). The Holder shall effect conversions by delivering to the Company Obligor a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company Obligor in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company Obligor shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Sources: Secured Convertible Debenture (Eyi Industries Inc.)
Conversion. (Aa) This Debenture After the Issue Date, the Holder shall be convertible into shares of Common Stock at have the option of right (the Holder"CONVERSION RIGHT"), in whole or in part at any time and from time to time, after on the Original Issue Date (subject to the limitations on conversion terms set forth in this Section 4(a)(ii3, to convert the principal amount of this Note and the accrued but unpaid interest thereon into Common Stock on the terms and conditions hereinafter set forth.
(b) hereof)Holder may exercise such Conversion Right by delivery to the Company of a written notice of conversion not less than three (3) Business Days prior to the date upon which such conversion shall occur. The date upon which such conversion shall occur is the conversion date ("CONVERSION DATE").
(c) Notwithstanding anything contained herein to the contrary, pursuant to the terms of this Note, the Holder shall not be entitled to convert this Note into that number of shares of Common Stock issuable upon a conversion hereunder shall which would be determined by adding in excess of the sum of (i) the quotient obtained number of shares of Common Stock actually owned by dividing (x) the outstanding principal amount of this Debenture to be converted Holder and (y) the Conversion Price (as defined herein), his affiliates and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a the conversion hereunderof this Note held by such Holder and his affiliates with respect to which the determination of this proviso is being made which would result in beneficial ownership by the Holder and his affiliates of more than 9.99% of the outstanding shares of Common Stock of the Company. For the purposes of the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and Regulation 13d-3 thereunder.
(Bd) Notwithstanding anything In the event that the Holder elects to convert all or any portion of this Note into Common Stock, the Holder shall give written notice of such election by delivering to the contrary contained hereinCompany an executed and completed notice of conversion (the "NOTICE OF CONVERSION"), if on any such Notice of Conversion shall provide a breakdown in reasonable detail of the Principal Amount, accrued interest and fees being converted. On each Conversion Date (as hereinafter defined) and in accordance with the Notice of Conversion, the Holder shall make the appropriate reduction to the Principal Amount, accrued interest and fees as entered in his records and shall provide written notice thereof to the Company within two (2) Business Days after the Conversion Date:. Each date on which a Notice of Conversion is delivered or telecopied to the Company in accordance with the provisions hereof shall be deemed, for all purposes of this Note, to be the Conversion Date. Pursuant to the terms of the Notice of Conversion, the Company will issue instructions to the transfer agent (together with such other documents as the transfer agent may request) within two (2) Business Days of the date of the delivery to Company of the Notice of Conversion. The Company shall use its best efforts to cause its transfer agent to transmit the certificates representing the Common Stock issuable upon full or partial conversion of this Note to any address or depositary directed by the Holder within five (5) Business Days after receipt by the Company of the Notice of Conversion.
(1e) the The number of shares of Common Stock at to be issued upon any conversion of this Note (the time authorized"CONVERSION SHARES") shall be determined by dividing that portion of the principal, unissued interest and unreserved for all purposesfees to be converted, or held as treasury stockif any, is insufficient to pay interest hereunder in shares of Common Stock;
by forty cents (2) the Underlying Shares issuable for such conversion (including any interest payable in shares$0.40) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6"CONVERSION PRICE");
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(Cf) This Debenture shall The Conversion Price and number and kind of shares or other securities to be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and issued upon conversion is subject to adjustment from time to timetime upon the occurrence of certain events, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.follows:
Appears in 1 contract
Conversion. (i) Conversion at Option of Holder.
(A) This Debenture shall ------------------------------ be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii4(a)(iii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to the quotient obtained by dividing (I) the product of (x) the outstanding principal amount of this Debenture to be converted and by (y) the product of (1) the quotient obtained by dividing .12 .05 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion DateDate (For example, assuming two million dollars ($2,000,000) of Debentures are outstanding for seven hundred twenty (720) days and the conversion price is ten dollars ($10.00) per share that would result in 220,000 shares of Common Stock (2,000,000/10) + ([(2,000,000) (.05/360) (720)]/10)), provided, that if the Company shall have timely elected to pay the interest due -------- on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) after the Underlying Shares Interest Effectiveness Date (as defined in Section 5) the number of shares of Common Stock issuable for such conversion (including any interest payable in sharespursuant to Section 4(a)(i)(A) above (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 65), as determined by counsel to the Company pursuant to a written opinion letter, addressed to the Company's transfer agent in the form and substance acceptable to the applicable Holder and such transfer agent (if the shares of Common Stock are permitted by the Holder to be delivered under this clause (2) prior to the Effectiveness Date (as defined in the Registration Rights Agreement) and thereafter an Underlying Shares Registration Statement shall be declared effective by the Commission, the Company shall, within three (3) Trading Days after the date of such declaration of effectiveness, exchange such shares for shares of Common Stock that are free of restrictive legends of any kind);
(3) the Common Stock is not listed or quoted for trading on the OTC Bulletin Board or on a Subsequent Market;; or
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) then, at the issuance option of such the Holder, the Company, in lieu of delivering shares of Common Stock would result in a violation of Sections 4(a)(iipursuant to Section 4(a)(i)(A)(ii), then, the Company may not pay interest in kind and must pay interest in cash by deliveringshall deliver, within three (3) Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 .05 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering surrendering the Debentures (or such portions thereof) to the Company a completed notice substantially in be converted, together with the form of conversion notice attached hereto as Exhibit A (a "Conversion Notice")) to the --------- ----------------- Company. The Each Conversion Notice shall set forth specify the remaining principal amount of this Debenture Debentures to be converted, the applicable Conversion Price as of the Conversion Date and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a such conversion is to be effected, which date may not be prior to the date such Conversion Notice is deemed to have been delivered is the hereunder (a "Conversion Date." Unless "). If no Conversion Date is specified in a Conversion Notice, --------------- the Holder Conversion Date shall be the date that such Conversion Notice is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversionsdeemed delivered hereunder. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have If the effect Holder is converting less than all of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to represented by the applicable conversion, which shall be evidenced Debenture(s) tendered by notations made in the Holder with the Conversion Notice. The Holder and , or if a conversion hereunder cannot be effected in full for any reason, the Company shall maintain records showing honor such conversion to the extent permissible hereunder and shall promptly deliver to such Holder (in the manner and within the time set forth in Section 4(b)) a new Debenture for such principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest erroras has not been converted.
Appears in 1 contract
Sources: Securities Purchase Agreement (One Voice Technologies Inc)
Conversion. (i) Conversion at Option of Holder.
(A) This Debenture shall be ------------------------------ convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii4(a)(iii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y)
(I) the product of (1) the quotient obtained by dividing .12 7.5% by 360 365 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) after the Underlying Shares issuable for Interest Effectiveness Date (as defined in Section 7) such conversion (including any interest payable in shares) shares of Common Stock (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 67), as determined by counsel to the Company pursuant to a written opinion letter, addressed to the Company's transfer agent in the form and substance acceptable to the applicable Holder and such transfer agent (if the shares of Common Stock are permitted by the Holder to be delivered under this clause (2) prior to the Effectiveness Date (as defined in the Registration Rights Agreement) and thereafter an Underlying Shares Registration Statement shall be declared effective by the Commission, the Company shall, within three (3) Trading Days after the date of such declaration of effectiveness, exchange such shares for shares of Common Stock that are free of restrictive legends of any kind);
(3) the Common Stock is not listed or quoted for trading on the OTC AMEX or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii4(a)(iii)(A) and (B), then, at the Company may not pay interest option of the Holder, the Company, in kind and must pay interest in cash by deliveringlieu of delivering shares of Common Stock pursuant to Section 4(a)(i)(A)(ii), shall deliver, within three (3) Trading Days of each applicable Conversion Date, an amount in of cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 7.5% by 360 365 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering surrendering the Debentures (or such portions thereof) to the Company a completed notice substantially in be converted, together with the form of conversion notice attached hereto as Exhibit A (a "Conversion Notice")) to the --------- ----------------- Company. The Each Conversion Notice shall set forth specify the remaining principal amount of this Debenture Debentures to be converted and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a such conversion is to be effected, which date may not be prior to the date such Conversion Notice is deemed to have been delivered is the hereunder (a "Conversion Date." Unless the Holder "). If no Conversion Date is converting the entire principal amount outstanding under this Debenturespecified in --------------- a Conversion Notice, the Holder Conversion Date shall be the date that such Conversion Notice is not be required to physically surrender this Debenture to the Company in order to effect conversionsdeemed delivered hereunder. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have If the effect Holder is converting less than all of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to represented by the applicable conversion, which shall be evidenced Debenture(s) tendered by notations made in the Holder with the Conversion Notice. The Holder and , or if a conversion hereunder cannot be effected in full for any reason, the Company shall maintain records showing honor such conversion to the extent permissible hereunder and shall promptly deliver to such Holder (in the manner and within the time set forth in Section 4(b)) a new Debenture for such principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest erroras has not been converted.
(ii) [INTENTIONALLY OMITTED].
Appears in 1 contract
Sources: Convertible Debenture Purchase Agreement (Sonic Foundry Inc)
Conversion. The Lender has the right, at any time after the Effective Date, at its election, to convert all or part of the outstanding and unpaid Principal Sum and accrued interest (Aand any other fees) This Debenture shall be convertible into shares of Common Stock at the option fully paid and non-assessable shares of common stock of the Holder, in whole or in part at any time and from time to time, after Borrower (the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof“Common Stock”). The number conversion price shall be the lesser of (a) $0.4375 per share of Common Stock or (b) Seventy Percent (70%) of the average of the three lowest closing prices in the 25 trading days prior to the conversion (the “Conversion Price”). The conversion formula shall be as follows: Number of shares of Common Stock issuable receivable upon a conversion hereunder shall be determined equals the dollar conversion amount divided by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price Price. A conversion notice (as defined hereinthe “Conversion Notice”) may be delivered to Borrower by method of Lender’s choice (including but not limited to email, facsimile, mail, overnight courier, or personal delivery), and (ii) all conversions shall be cashless and not require further payment from the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant Lender. If no objection is delivered from Borrower to the terms hereofLender, subsection (ii) shall not be used in the with respect to any variable or calculation of the number Conversion Notice within 24 hours of delivery of the Conversion Notice, then the Borrower shall have been thereafter deemed to have irrevocably confirmed and irrevocably ratified such notice of conversion and waived any objection thereto. The Borrower shall deliver the shares of Common Stock issuable upon a from any conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on Lender (in any Conversion Date:
(1name directed by the Lender) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
within three (3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its business days of conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice")delivery. The Conversion Notice Price shall set forth be subject to equitable adjustments for stock splits, stock dividends or rights offerings by the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent Borrower relating to the conversion at issue. The date on which a Conversion Notice is delivered is Borrower’s securities or the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event securities of any dispute or discrepancy, the records subsidiary of the Holder shall be controlling Borrower, combinations, recapitalization, reclassifications, extraordinary distributions and determinative in the absence of manifest errorsimilar events.
Appears in 1 contract
Conversion. Holders of Series D Preferred Units shall have the right to convert all or a portion of such units into Common Units, as follows:
(Aa) This Debenture Subject to and upon compliance with the provisions of this Section 6, a holder of Series D Preferred Units shall be convertible into shares of Common Stock have the right, at the option of the Holderhis or her option, in whole or in part at any time and from time to time, after the Original Issue Date (subject earliest to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum occur of (i) the quotient sixty first day after such holder provides the Partnership with written notice of its intent to convert Series D Preferred Units, (ii) the first day on which a Change of Control occurs, (iii) the occurrence of a REIT Termination Event, or (iv) such date as determined by the Partnership (the "Conversion Date"), to convert all or any portion of such units (or such units as determined by the General Partner if pursuant to clause (iv) above) into the number of Common Units obtained by dividing the aggregate Liquidation Preference of such units (xinclusive of accrued but unpaid distributions) the outstanding principal amount of this Debenture to be converted and (y) by the Conversion Price (as defined hereinin effect at the time and on the date provided for in the last paragraph of paragraph (b) of this Section 6), such conversion to be made in the manner provided in paragraph (b) of this Section 6; PROVIDED, HOWEVER, that the right to convert units called for redemption pursuant to Section 5 shall terminate at the close of business on the fifth Business Day prior to the Call Date fixed for such redemption, unless the Partnership shall default in making payment of the cash payable upon such redemption under Section 5.
(b) In order to exercise the conversion right, the holder of each Series D Preferred Unit to be converted shall irrevocably instruct the General Partner in a writing duly executed by the holder or the holder's duly authorized attorney, with signature guaranteed, to convert such units into Common Units. The General Partner, in its sole discretion, may require such holder to provide additional instruments of transfer as its deems necessary or desirable to effect the conversion. Each instruction shall be accompanied by an amount sufficient to pay any transfer or similar tax (or evidence reasonably satisfactory to the General Partner demonstrating that such taxes have been paid). Each conversion shall be deemed to have been effected immediately prior to the close of business on the date on which such instruction and such notice shall have been received by the General Partner as aforesaid (and if applicable, payment of an amount equal to the distribution payable on such units shall have been received by the General Partner as described above) and such conversion shall be at the Conversion Price in effect at such time on such date. Holders of Series D Preferred Units at the close of business on a distribution payment record date shall be entitled to receive the distribution payable on such units on the corresponding Distribution Payment Date notwithstanding the conversion thereof following such distribution payment record date and prior to such Distribution Payment Date. However, the holder of Series D Preferred Units converted during the period between the close of business on any distribution payment record date and the opening of business on the corresponding Distribution Payment Date (except Series D Preferred Units converted after the issuance of notice of redemption with respect to a Call Date during such period, such Series D Preferred Units being entitled to such distribution on the Distribution Payment Date) must pay to the Partnership an amount equal to the distribution payable on such units on such Distribution Payment Date. A holder of Series D Preferred Units on a distribution payment record date who converts Series D Preferred Units into Common Units on the corresponding Distribution Payment Date will receive the distribution payable by the Partnership on such Series D Preferred Units on such date, and the converting holder need not pay the amount of such distribution upon conversion. Except as provided above, the Partnership shall make no payment or allowance for unpaid distributions, whether or not in arrears, on converted units or for distributions on the Common Units issued upon such conversion.
(c) In lieu of any fractional interest in a Common Unit that would otherwise be deliverable upon the conversion of a Series D Preferred Share, the General Partner, in its sole discretion, may cause the Partnership to pay to the holder of such fractional unit an amount in cash based upon the Fair Market Value of the Common Units on the Trading Day immediately preceding the date of conversion. If more than one unit shall be surrendered for conversion at one time by the same holder, the number of full Common Units issuable upon conversion thereof shall be computed on the basis of the aggregate number of Series D Preferred Units so surrendered.
(d) The Conversion Price shall be adjusted from time to time as follows:
(i) If the Partnership shall after the Issue Date (A) make a distribution on its Partnership Units in Common Units, (B) subdivide its outstanding Common Units into a greater number of units, (C) combine its outstanding Common Units into a smaller number of units or (D) issue any Partnership Units by reclassification of its Common Units, the Conversion Price in effect at the opening of business on the day following the date fixed for the determination of unitholders entitled to receive such distribution or distribution or at the opening of business on the Business Day next following the day on which such subdivision, combination or reclassification becomes effective, as the case may be, shall be adjusted so that the holder of any Series D Preferred Units thereafter surrendered for conversion shall be entitled to receive the number of Common Units that such holder would have owned or have been entitled to receive after the happening of any of the events described above as if such Series D Preferred Units had been converted immediately prior to the record date in the case of a distribution or distribution or the effective date in the case of a subdivision, combination or reclassification. An adjustment made pursuant to this subparagraph (i) shall become effective immediately after the opening of business on the Business Day next following the record date (except as provided in paragraph (h) below) in the case of a distribution and shall become effective immediately after the opening of business on the Business Day next following the effective date in the case of a subdivision, combination or reclassification.
(ii) If the amount Partnership shall issue after the Issue Date rights, options or warrants to all holders of Common Units entitling them (for a period expiring within 45 days after the record date mentioned below) to subscribe for or purchase Common Units at a price per share less than 95% (100% if a stand-by underwriter is used and charges the Partnership a commission) of the Fair Market Value per Common Unit on the record date for the determination of unitholders entitled to receive such rights, options or warrants, then the Conversion Price in effect at the opening of business on the Business Day next following such record date shall be adjusted to equal to the price determined by multiplying (IA) the product Conversion Price in effect immediately prior to the opening of business on the Business Day next following the date fixed for such determination by (B) a fraction, the numerator of which shall be the sum of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price Common Units outstanding on the Conversion Date, provided, that if close of business on the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable date fixed for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 determination and (y) the number of days shares that the aggregate proceeds to the Partnership from the exercise of such rights, options or warrants for Common Units would purchase at 95% of such Fair Market Value (or 100% in the case of a stand-by underwriting), and the denominator of which shall be the sum of (x) the number of Common Units outstanding on the close of business on the date fixed for such principal amount was outstandingdetermination and (y) the number of additional Common Units offered for subscription or purchase pursuant to such rights, options or warrants. Such adjustment shall become effective immediately after the opening of business on the day next following such record date (except as provided in paragraph (h) below). In determining whether any rights, options or warrants entitle the holders of Common Units to subscribe for or purchase Common Units at less than 95% of such Fair Market Value (or 100% in the case of a stand-by underwriting), there shall be taken into account any consideration received by the Partnership upon issuance and upon exercise of such rights, options or warrants, the value of such consideration, if other than cash, to be determined by the General Partner whose determination shall be conclusive.
(iii) If the Partnership shall distribute to all holders of its Common Units any securities of the Partnership (other than Common Units) or evidence of its indebtedness or assets (excluding cumulative cash distributions or distributions paid with respect to the Common Units after December 31, 2000 which are not in excess of the following: the sum of (A) the Partnership's cumulative undistributed Funds from Operations at December 31, 2000, plus (B) the cumulative amount of Funds from Operations, as determined by the General Partner, after December 31, 2000, minus (C) This Debenture the cumulative amount of distributions accrued or paid in respect of the Series D Preferred Units or any other class or series of preferred units of the Partnership after the Issue Date or rights, options or warrants to subscribe for or purchase any of its securities (excluding those rights, options and warrants issued to all holders of Common Units entitling them for a period expiring within 45 days after the record date referred to in subparagraph (ii) above to subscribe for or purchase Common Units, which rights and warrants are referred to in and treated under subparagraph (ii) above) (any of the foregoing being hereinafter in this subparagraph (iii) collectively called the "SECURITIES" and individually a "SECURITY"), then in each such case the Conversion Price shall be convertible into shares adjusted so that it shall equal the price determined by multiplying (x) the Conversion Price in effect immediately prior to the close of business on the date fixed for the determination of unitholders entitled to receive such distribution by (y) a fraction, the numerator of which shall be the Fair Market Value per Common Stock Unit on the record date mentioned below less the then fair market value (as determined by the General Partner, whose determination shall be conclusive) of the portion of the Securities or assets or evidences of indebtedness so distributed or of such rights, options or warrants applicable to one Common Unit, and the denominator of which shall be the Fair Market Value per Common Unit on the record date mentioned below. Such adjustment shall become effective immediately at the option opening of business on the Business Day next following (except as provided in paragraph (h) below) the record date for the determination of unitholders entitled to receive such distribution. For the purposes of this subparagraph (iii), the distribution of a Security, which is distributed not only to the holders of the HolderCommon Units on the date fixed for the determination of unitholders entitled to such distribution of such Security, in whole or in part at any time and from time but also is distributed with each Common Unit delivered to timea Person converting a Series D Preferred Unit after such determination date, after shall not require an adjustment of the Original Issue Date Conversion Price pursuant to this subparagraph (subject to iii); PROVIDED that on the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date date, if any, on which a person converting a Series D Preferred Unit would no longer be entitled to receive such Security with a Common Unit (other than as a result of the termination of all such Securities), a distribution of such Securities shall be deemed to have occurred and the Conversion Notice is delivered is Price shall be adjusted as provided in this subparagraph (iii) (and such day shall be deemed to be tithe date fixed for the determination of the unitholders entitled to receive such distribution" and "the record date" within the meaning of the two preceding sentences).
(iv) In case a tender or exchange offer (which term shall not include open market repurchases by the Partnership) made by the Partnership or any subsidiary of the Partnership for all or any portion of the Common Units shall expire and such tender or exchange offer shall involve the payment by the Partnership or such subsidiary of consideration per Common Unit having a fair market value (as determined in good faith by the General Partner, whose determination shall be conclusive), at the last time (the "Conversion Date." Unless EXPIRATION TIME") tenders or exchanges may be made pursuant to such tender or exchange offer, that exceeds the Holder is converting Current Market Price per Common Unit on the entire principal amount outstanding under this DebentureTrading Day next succeeding the Expiration Time, the Holder is Conversion Price shall be reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subparagraph, by a fraction of which the numerator shall be the number of Common Units outstanding (including any tendered or exchanged units) at the Expiration Time, multiplied by the Current Market Price per Common Unit on the Trading Day next succeeding the Expiration Time, and the denominator shall be the sum of (A) the fair market value (determined as aforesaid) of the aggregate consideration payable to unitholders based upon the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any maximum, being referred to as the "PURCHASED UNITS") and (B) the product of the number of Common Units outstanding (less any Purchased Units) at the Expiration Time and the Current Market Price per Common Unit on the Trading Day next succeeding the Expiration Time, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time.
(v) No adjustment in the Conversion Price shall be required unless such adjustment would require a cumulative increase or decrease of at least 1 % in such price; PROVIDED, HOWEVER, that any adjustments that by reason of this subparagraph (v) are not required to be made shall be carried forward and taken into account in any subsequent adjustment until made; and PROVIDED, FURTHER, that any adjustment shall be required and made in accordance with the provisions of this Section 6 (other than this subparagraph (v)) not later than such time as may be required in order to preserve the tax-free nature of a distribution to the holders of Common Units: Notwithstanding any other provisions of this Section 6, the Partnership shall not be required to physically surrender make any adjustment of the Conversion Price for the issuance of any Common Units pursuant to any plan providing for the reinvestment of distributions or interest payable on securities of the Partnership and the investment of additional optional amounts in Common Units under such plan. All calculations under this Debenture Section 6 shall be made to the Company in order nearest cent (with $.005 being rounded upward) or to effect conversions. Subject to Section 4(bthe nearest one-tenth of a unit (with .05 of a unit being rounded upward), each Conversion Noticeas the case may be. Anything in this paragraph (d) to the contrary notwithstanding, once given, the Partnership shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal entitled, to the applicable conversionextent permitted by law, which shall be evidenced by notations made to make such reductions in the Conversion Notice. The Holder and Price, in addition to those required by this paragraph (d), as it in its discretion shall determine to be advisable in order that any share distributions, subdivision of shares, reclassification or combination of shares, distribution of rights or warrants to purchase shares or securities, or distribution of other assets (other than cash distributions) hereafter made by the Company Partnership to its partners shall maintain records showing not be taxable.
(e) If the principal amount converted and the date Partnership shall be a party to any transaction (including without limitation a merger, consolidation, self tender offer for all or substantially all of such conversions. In the event its Common Units, sale of any dispute all or discrepancy, the records substantially all of the Holder shall be controlling Partnership's assets or recapitalization of the Common Units and determinative in excluding any transaction as to which subparagraph (d)(i) of this Section 6 applies) (each of the absence of manifest error.foregoing being referred to herein as a "TRANS
Appears in 1 contract
Conversion. (A) This Debenture shall be convertible Subject to the provisions of the Indenture, the Holder hereof has the right, at its option, at any time following the date of issuance of the Securities and prior to the close of business on the Business Day immediately preceding December 15, 2009, to convert the Principal Amount hereof or any portion of such principal which is $1,000 or an integral multiple thereof, into that number of fully paid and non-assessable shares of Common Stock Stock, as said shares shall be constituted at the option date of conversion, obtained by dividing the Principal Amount of this Security or portion thereof to be converted by the conversion price of $20.04 (the "Conversion Price") as adjusted from time to time as provided in the Indenture, upon surrender of this Security, together with a Conversion Notice as provided in the Indenture, to the Company at the office or agency of the HolderCompany maintained for that purpose in Boston, Massachusetts, which is initially the Corporate Trust Office, and, unless the shares issuable on conversion are to be issued in the same name as this Security, duly endorsed by, or accompanied by instruments of transfer in form satisfactory to the Company duly executed by, the Holder or by his duly authorized attorney. No adjustment in respect of interest or dividends will be made upon any conversion; provided, however, that, if this Security shall be surrendered for conversion during the period from the close of business on any Regular Record Date for the payment of interest through the close of business on the Business Day next preceding the following Interest Payment Date, such Security (or portion thereof being converted) must be accompanied by an amount, in whole funds acceptable to the Company, equal to the interest payable on such Interest Payment Date on the Principal Amount being converted; provided, however, that no such payment shall be required if there shall exist at the time of conversion a default in the payment of interest or Additional Amounts on the Securities. No fractional shares will be issued upon any conversion, but an adjustment and payment in cash will be made, as provided in the Indenture, in respect of any fraction of a share which would otherwise be issuable upon the surrender of any Securities for conversion. Securities in respect of which a Holder is exercising its right to require repurchase on a Fundamental Change Repurchase Date may be converted only if such Holder withdraws its election to exercise such right in accordance with the terms of the Indenture. Upon conversion, the Company may choose to deliver, in lieu of Common Stock, cash or a combination of cash and Common Stock in accordance with the terms of the Indenture. [INCLUDE IF SECURITY IS A GLOBAL SECURITY - In the event of a deposit or withdrawal of an interest in this Security, including an exchange, transfer, repurchase or conversion of this Security in part only, the Trustee, as custodian of the Depositary, shall make an adjustment on its records to reflect such deposit or withdrawal in accordance with the rules and procedures of the Depositary.] [INCLUDE IF SECURITY IS A RESTRICTED SECURITY - Subject to certain limitations in the Indenture, at any time when the Company is not subject to Section 13 or 15(d) of the United States Securities Exchange Act of 1934, as amended, upon the request of a Holder of a Restricted Security, the Company will promptly furnish or cause to be furnished Rule 144A Information (as defined below) to such Holder of Restricted Securities, or to a prospective purchaser of any such security designated by any such Holder, to the extent required to permit compliance by any such Holder with Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"). "Rule 144A Information" shall be such information as is specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto).] If an Event of Default shall occur and from be continuing, the Principal Amount plus interest accrued and Additional Amounts, if any, through such date on all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in aggregate Principal Amount of the Outstanding Securities. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate Principal Amount of the Outstanding Securities, on behalf of the Holders of all the Securities, to timewaive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, after the Original Issue Date (whether or not notation of such consent or waiver is made upon this Security. As provided in and subject to the limitations on conversion set forth provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities, the Holders of not less than 25% in Section 4(a)(ii) hereof)aggregate Principal Amount of the Outstanding Securities shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity satisfactory to it, and the Trustee shall not have received from the Holders of a majority in Principal Amount of Outstanding Securities a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of said principal hereof or interest hereon on or after the respective due dates expressed herein or for the enforcement of any conversion right. No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the Principal Amount or Fundamental Change Repurchase Price of, and interest and Additional Amounts, if any, on, this Security at the times, place and rate, and in the coin or currency, herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in Boston, Massachusetts, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate Principal Amount, will be issued to the designated transferee or transferees. The Securities are issuable only in registered form in denominations of $1,000 and any integral multiple of $1,000 above that amount, as provided in the Indenture and subject to certain limitations therein set forth. Securities are exchangeable for a like aggregate Principal Amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. This Security shall be governed by and construed in accordance with the laws of the State of New York. All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture. ASSIGNMENT FORM If you want to assign this Security, fill in the form below and have your signature guaranteed: I or we assign and transfer this Security to: (Print or type name, address and zip code and social security or tax ID number of shares assignee) and irrevocably appoint _____________________________________ agent to transfer this Security on the books of Common Stock issuable upon a conversion hereunder shall the Company. The agent may substitute another to act for him. Date: __________________ Signed: ____________________ (Sign exactly as your name appears on the other side of this Security) Signature Guarantee: Note: Signatures must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by adding the sum Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. In connection with any transfer of this Security occurring prior to the date which is the earlier of (i) the quotient obtained date of the declaration by dividing the Commission of the effectiveness of a registration statement under the Securities Act of 1933, as amended (x) the outstanding principal amount "Securities Act"), covering resales of this Debenture to be converted and Security (ywhich effectiveness shall not have been suspended or terminated at the date of the transfer) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstandingDecember 11, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then2004, the Company may undersigned confirms that it has not pay interest utilized any general solicitation or general advertising in kind connection with the transfer and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of that this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice Security is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.being transferred: [Check One]
Appears in 1 contract
Conversion. (Aa) This Debenture Subject to and upon compliance with the provisions of the Fiscal Agency Agreement, a holder of Securities is entitled, at its option, at any time on or after the date that is the latest of (i) the Exchange Date, (ii) March 15, 1996 and (iii) the date of the effectiveness of the Registration Statement to be filed by the Company under the Securities Act relating to the Common Stock issuable upon conversion of the Restricted Securities (the _Registration Date_) and on or before the close of business on January 1, 2003, or in the case of a Security or portion thereof that is called for redemption by the Company, or the holder thereof elects to have such Security or portion thereof redeemed by the Company pursuant to Section 3(d) hereof, then in respect of such Security or such portion thereof until and including, but (unless the Company defaults in making the payment due upon redemption) not after, the close of business on the 15th day next preceding the date fixed for redemption (or if such date is not a business day, as described in Section 11 hereof in New York City, then the next succeeding business day), or in the case of a Security or portion thereof that the holder elects to have redeemed by the Company pursuant to Section 3(e) hereof, then in respect of such Security or portion thereof until and including, but (unless the Company defaults in making the payment due upon redemption) not after, the close of business on the date the holder makes such election, to convert such Security (or any portion of the principal amount thereof which is U.S. $1,000 or an integral multiple thereof), at the principal PAGE amount thereof, or of such portion, into fully paid and nonassessable shares ("Conversion Shares") (calculated as to each conversion to the nearest 1/1000 of a share) of common stock, par value $1.00 per share of the Company ("Common Stock_), at a Conversion Price equal to U.S. $56.70 aggregate principal amount of Securities for each Conversion Share (the "Conversion Price") (or at the current adjusted Conversion Price if an adjustment has been made as provided herein) by surrender of the Security, or in the case of a Security submitted for redemption pursuant to Section 3(d) or Section 3(e) hereof, satisfactory evidence of such submission, together with (i) if a Bearer Security, all unmatured coupons and any matured coupons in default appertaining thereto, and if a Registered Security (if so required by the Company or the Fiscal Agent), instruments of transfer in form satisfactory to the Company and the Fiscal Agent, duly executed by the registered holder or by his duly authorized attorney, and (ii) the conversion notice hereon duly executed (x) at the principal corporate trust office of the Fiscal Agent, or at such other office or agency of the Company as may be designated by it for such purpose in New York City, or (y) subject to any laws or regulations applicable thereto and subject to the right of the Company to terminate the appointment of any such conversion agency, at Chemical Bank, Chemical Bank House, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, and if the Securities are listed on the Luxembourg Stock Exchange and so long as listed thereon, Banque Internationale a Luxembourg, S.A., ▇▇, ▇▇▇▇▇ ▇'▇▇▇▇, L-1470 Luxembourg, or at such other offices or agencies as the Company may designate.
(b) In the case of a conversion after the close of business on a Record Date next preceding any interest payment date and before the opening of business on such interest payment date, the holder of record of a Registered Security at such Record Date is to receive an installment of interest on the interest payment date. No payment or adjustment shall be convertible into made upon any conversion for dividends on the Common Stock delivered on conversion. Except as set forth in the first sentence of this subsection (b), accrued interest from the immediately preceding interest payment date until the date of conversion (together with any Additional Amounts, if any, thereon) will be paid to the holder within five business days after presentment for conversion on account of any interest accrued on the Securities surrendered for conversion, except that interest on Registered Securities surrendered for conversion after the close of business on a Record Date and before the opening of business on the next succeeding interest payment date shall be paid in an amount equal to the interest payable on such interest payment date on the principal amount being surrendered for conversion. No fractions of shares or scrip representing fractions of shares will be issued or delivered on conversion, but instead of any fractional interest the Company shall pay a cash adjustment as provided in the Fiscal Agency Agreement. Such conversion shall be so affected by the Company, except payment of accrued interest PAGE (together with Additional Amounts, if any, thereon) which will be paid by the Paying Agent.
(i) In case at any time the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in shares of Common Stock Stock, the Conversion Price in effect at the option opening of business on the Holder, in whole day following the date fixed for the determination of stockholders entitled to receive such dividend or in part at any time and from time to time, after other distribution shall be reduced so that the Original Issue Date (subject to same shall equal the limitations on conversion set forth in Section 4(a)(ii) hereof). The price determined by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock issuable outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares of Common Stock constituting such dividend or other distribution, such adjustment to become effective immediately after the opening of business on the day following the date fixed for such determination.
(ii) In the case at any time the Company shall (A) subdivide its outstanding shares of Common Stock, (B) combine its outstanding shares of Common Stock into a smaller number of shares, or (C) issue by reclassification of its shares of Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation) any shares of capital stock, the Conversion Price in effect at the effective date of such subdivision, combination or reclassification shall be proportionately adjusted so that the holder of any Security surrendered for conversion after such time shall be entitled to receive the aggregate number and kind of shares which, if such Security had been converted immediately prior to such time, the holder would have owned upon such conversion and been entitled to receive upon such subdivision, combination or reclassification. Such adjustment shall become effective immediately after the effectiveness of such subdivision, combination or reclassification. Such adjustment shall be made successively whenever any event listed above shall occur.
(iii) In case at any time the Company shall fix a conversion hereunder record date for the issuance of rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase Common Stock at a price per share less than the current market price per share of Common Stock (determined as provided in paragraph (v) of this subsection (c)) on such record date, the Conversion Price in effect at the opening of business on the day following such record date shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares so offered for subscription or purchase would purchase at such current market price per share of Common Stock and the PAGE denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following such record date. Such reduction shall be made successively whenever such a record date is fixed; and in the event that such rights or warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such record date had not been fixed.
(iv) In case at any time the Company shall fix a record date for the making of a distribution, by dividend or otherwise, to all holders of its shares if Common Stock, of evidences of its indebtedness or assets (including securities, but excluding any dividend or distribution referred to in paragraph (i) of this subsection (c), any rights or warrants referred to in paragraph (iii) of this subsection (c), and any dividend or distribution paid in cash out of the retained earnings of the Company), then in each such case the Conversion Price in effect after such record date shall be determined by adding multiplying the sum Conversion Price in effect immediately prior to such record date by a fraction, of which numerator shall be the total number of outstanding shares of Common Stock multiplied by the current market price per share of Common Stock (determined as provided in paragraph (v) of this subsection (c)) on such record date, less the fair market value (as determined by the Board of Directors of the Company, whose determination shall be conclusive and described in a statement filed with the Fiscal Agent) of the portion of the assets or evidences of indebtedness so to be distributed, and of which denominator shall be the total number of outstanding shares of Common Stock multiplied by such current market price per share of Common Stock. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such record date has not been fixed.
(v) For the purpose of any computation under paragraphs (iii) and (iv) of this subsection (c), the current market price per share of Common Stock on any date shall be deemed to be the average of the Closing Prices (as defined below) for the 15 consecutive trading days upon which the principal trading market for the Common Stock is open and selected by the Company commencing not less than 20 nor more than 30 days before the day in question. The "Closing Price" for any day shall be the last reported sales prices regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not or admitted to trading on such exchange, on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, the closing sale price quoted PAGE on the Nasdaq National Market, or if not so quoted, as determined by the Company.
(vi) The Company may make such adjustments in the Conversion Price, in addition to those required by paragraphs (i), (ii) and, (iii) selected by the Company of this section, as it considers to be advisable in order that any event treated for United States Federal income tax purposes as a dividend of stock or stock rights shall not be taxable to the recipients.
(vii) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least U.S. $.25 in such Conversion Price; provided, however, that any adjustment which by reason of this paragraph (vii) is not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this subsection (c) shall be made to the nearest cent or to the nearest 1/1000 of a share, as the case may be.
(viii) In the event that the Company shall distribute rights pro rata to holders of Common Stock pursuant to the Rights Agreement, dated as of May 4, 1988, between the Company and the First National Bank of Boston, as Rights Agent, or any similar plan (_Rights_) the Company shall make proper provision so that each holder of a Security who converts such Security (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the Conversion Shares, a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the quotient obtained by dividing date for the distribution to the holders of Rights of separate certificates evidencing such Rights (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein_Distribution Date_), the same number of Rights to which a holder of a number of shares of Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the amount equal to (I) Distribution Date, the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the same number of days for Rights to which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation holder of the number of shares of Common Stock issuable into which the principal amount of the Security so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights; provided, however, that if after the Distribution Date with respect to such Rights converting Holders of Securities are not entitled to receive the Rights that would otherwise be attributable (but for the date of conversion) to their respective Conversion Shares or such Rights are not issued to them upon conversion for any reason, then adjustment of the Conversion Price shall be made under paragraph (iii) and this subsection (c), except the Distribution Date with respect to such Rights shall be substituted as _the record date for the issuance of rights_; provided, further, that if such an adjustment is made and such Rights are later redeemed, invalidated or terminated, PAGE then a conversion hereundercorresponding reversing adjustment of the Conversion Price shall be made to the Conversion Price, on an equitable basis, to take account of such event.
(Bd) Notwithstanding anything to Whenever the contrary contained hereinConversion Price is adjusted and in the event of certain other corporate actions, if on any Conversion Date:as herein provided, the Company shall give notice, all as provided in the Fiscal Agency Agreement.
(1e) The Company shall file, as soon as practicable following the number Closing Date, a shelf registration statement with the United States Securities and Exchange Commission covering the resale of the shares of Common Stock at issuable upon conversion of the time authorized, unissued Restricted Securities (_Registrable Securities_); provided that any holder of any Restricted Securities or Registrable Securities shall not sell any shares pursuant to such registration statement unless and unreserved until it provides to the Company such information as the Company may reasonably request for all purposesuse in connection with the identification of such holder as a selling stockholder in such registration statement, or held any prospectus included therein, and no such sale shall be made by such holder pursuant to such registration statement unless and until such information is included by the Company in such registration statement or prospectus. The Company shall in good faith use its best efforts and at its cost to cause such registration statement to be declared effective as treasury stockpromptly as practicable thereafter and to include in such registration statement the information provided by a holder as a selling stockholder and shall notify the Fiscal Agent of the effectiveness thereof and agrees to use its best efforts to (i) cause all registrations with, is insufficient and to pay interest hereunder obtain any approvals by, any governmental authority under any Federal or state law of the United States that may be required in shares connection with the conversion of the Securities into Common Stock;
Stock and the resale thereof, (2ii) maintain the effectiveness of such registrations until the earlier of (a) three years from the date of the Fiscal Agency Agreement, or (b) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to date that Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) is available for the Common Stock is not listed or quoted for trading on resale of the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount issuable upon conversion of the Debentures to be converted on such Conversion Date and Restricted Securities (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.other sec
Appears in 1 contract
Conversion. Buyer shall have the right to convert the Preferred Shares into Common Shares as follows:
(Ai) This Debenture The Preferred Shares shall become convertible, without the payment of any additional consideration therefor, over a 180-day period from the date hereof in accordance with the following schedule: No. of Shares Date on Which First Convertible ------------- ------------------------------- 20% (the "First Installment") December 14, 1996 40% (the "Second Installment") January 13, 1997 60% (the "Third Installment") February 12, 1997 80% (the "Fourth Installment") March 14, 1997 100% (the "Fifth Installment") April 13, 1997
(ii) The Preferred Shares shall be convertible into shares that number of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be Shares as is determined by adding dividing the sum of (iA) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted Purchase Price and (yB) any dividends on the Preferred Shares which are accrued but unpaid as of the date of conversion, by the Conversion Price (determined as defined herein), and (iihereinafter provided) in effect on the amount date of conversion. The "Conversion Price" shall be equal to eighty-five and one-half percent (I85.5%) of the product average closing bid price of a Common Share on the American Stock Exchange (x) or, in the outstanding principal amount of this Debenture to be converted and (y) event that such security is not traded on the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for American Stock Exchange, such other national or regional securities exchange or automated quotation system upon which such principal amount was outstandingsecurity is listed and principally traded or, divided if no such price is available, the average per share market value of such security as determined by a nationally recognized investment banking firm or other nationally recognized financial adviser retained by Seller for such purpose) during the five (II5) trading days immediately preceding the date the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act Notice (as defined in Section 6);
(35(iii) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(iihereof), thenis received by Seller (such price or market value, the Company may not pay interest in kind "Closing Price"); PROVIDED, HOWEVER, that if the Conversion Price is equal to or greater than $20.00, then the Conversion Price shall be $20.00 and must pay interest in cash by deliveringif the Conversion Price is equal to or less than $12.00, within three Trading Days of each applicable then the Conversion Date, an amount in cash Price shall be equal to the product of (a) Closing Price; PROVIDED, FURTHER, that whenever the outstanding principal amount of Conversion Price is less than $8.75, then the Debentures Conversion Price shall be deemed to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding$8.75.
(Ciii) This Debenture Before Buyer shall be convertible entitled to convert any Preferred Shares into shares of Common Stock Shares, Buyer shall surrender the certificate or certificates therefor, duly endorsed, at the option office of Seller or of any transfer agent for the HolderPreferred Shares, in whole or in part at any time and from time to timeshall give written notice, after which may be provided by facsimile (the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"), to Seller at such office that Buyer elects to convert the same and shall state therein the name or names, including of any of its nominees, in which Buyer wishes the certificate or certificates for Common Shares to be issued, together with the applicable federal taxpayer identification number, if any. The Such notice shall specify which Installment or Installments (as defined in Section 5(i) hereof, or portions thereof, are to be converted. Seller shall, within five (5) business days after Seller's receipt of the Conversion Notice shall set forth (the remaining principal amount "Deadline"), provided that Seller has received the certificate or certificates therefor, duly endorsed, at the office of this Debenture and all accrued and unpaid interest thereon subsequent Seller or of any transfer agent for the Preferred Shares prior to the Deadline, issue and deliver at such office to Buyer, or to its nominee or nominees, a certificate or certificates for the number of Common Shares to which Buyer shall be entitled, together with a certificate or certificates representing any remaining Preferred Shares which have not yet been converted. Upon the conversion of any Preferred Shares, such shares shall be restored to the status of authorized but unissued shares and may be reissued by Seller at issue. The any time.
(iv) In the event of (A) any declaration by Seller of a record date for its common stock for the purpose of determining the holders thereof who are entitled to receive any dividend (other than a stock dividend payable in shares of common stock or a cash dividend which is the same as cash dividends paid in previous quarters) or other distribution, or (B) any capital reorganization of Seller, any reclassification or recapitalization of the capital stock of Seller, any merger or consolidation of Seller, and any transfer of all or substantially all of the assets of Seller to any other corporation, or any other entity or person, or any voluntary or involuntary dissolution, liquidation or winding up of Seller, Seller shall mail to Buyer at least 20 days prior to the record date specified therein, a notice specifying (1) the date on which any such record is to be declared for the purpose of such dividend or distribution and a Conversion Notice description of such dividend or distribution, (2) the date on which any such reorganization, reclassification, transfer, consolidation, merger, dissolution, liquidation or winding up is delivered expected to become effective, and (3) the time, if any, that is to be fixed, as to when the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, holders of record of Common Shares (or other securities) shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal entitled to the applicable conversionexchange their Common Shares (or other securities) for securities or other property deliverable upon such reorganization, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversionsreclassification, transfer, consolidation, merger, dissolution, liquidation or winding up. In the event of any dispute merger or discrepancyconsolidation of Seller, or any transfer of all or substantially all of the assets of Seller to any other corporation, or any other entity or person, Buyer shall, notwithstanding anything herein to the contrary, from and after the consummation of such merger, consolidation or transfer, no longer be entitled to convert its Preferred Shares into Common Shares and shall be entitled to receive only that amount of consideration which Buyer would have received had it converted its Preferred Shares into Common Shares immediately prior to such merger, consolidation or transfer.
(v) Seller shall reserve and keep available out of its authorized but unissued Common Shares such number of Common Shares as shall from time to time be sufficient to effect conversion of the Preferred Shares.
(vi) Buyer hereby acknowledges and agrees that all certificates representing Preferred Shares, prior to the date which is forty (40) days after the issuance date of such Preferred Shares, shall bear the following legend: The shares of the Issuer represented by this certificate have been issued pursuant to Regulation S promulgated under the Securities Act of 1933, as amended ("Act"), and have not been registered under the Act. These shares may not be offered or sold within the United States or to or for the account of a "U.S. Person" (as that term is defined in Regulation S) until after the fortieth (40th) day following completion of the Regulation S offering of the Issuer pursuant to which these shares have been issued and only in compliance with the Act. The Issuer will notify the transfer agent of the date of completion of such offering.
(vii) Buyer further acknowledges and agrees that, prior to April 14, 1997, all certificates representing Preferred Shares shall contain a legend stating that the Preferred Shares represented by such certificates are convertible, and the specifics with respect thereto.
(viii) Seller shall use its best efforts to issue and deliver to Buyer a certificate or certificates for the number of Common Shares 'to which Buyer shall be entitled within seven (7) business days after Buyer has fulfilled all conditions required for conversion as set forth in this Agreement (the "Deadline"). Seller understands that a delay in the issuance of the Common Shares beyond the Deadline could result in economic loss to Buyer. As compensation to Buyer for such loss, and not as a penalty, Seller agrees to pay liquidated damages to Buyer for late issuance of Common Shares upon conversion in the amount of one percent (1%) of the requested conversion amount, per day, beginning on the eighth (8th) business day from the date of receipt by Seller of a duly executed notice of conversion, provided that the original Preferred Shares to be converted have been delivered to Seller within such time period, all in accordance with this Agreement, the records Preferred Shares and the requirements of Seller's transfer agent. Said liquidated damages shall accrue each day through the date the Common Shares are issued to Buyer upon conversion, and shall be paid by wire transfer to an account designated by Buyer upon the earlier to occur of (i) issuance of the Holder Shares to Buyer, or (ii) each monthly anniversary of the receipt by Seller of such Buyer's notice of conversion. Nothing herein shall waive Seller's obligations to deliver Common Shares upon conversion of the Preferred Shares or limit Buyer's right to pursue actual damages for Seller's failure to issue and deliver Common Shares to Buyer in accordance with the terms of this Agreement and the Preferred Shares.
(ix) Seller agrees that, in addition to any other remedies which may be controlling and determinative available to Buyer, in the absence event Seller fails for any reason to effect delivery to Buyer of manifest errorcertificates representing Common Shares by the Deadline, Buyer may revoke the notice of conversion by delivering a notice of such effect to Seller, whereupon Seller and Buyer shall each be restored to their respective positions immediately prior to delivery of such notice of conversion.
Appears in 1 contract
Sources: Offshore Convertible Securities Subscription Agreement (Selfcare Inc)
Conversion. (Aa) This Debenture shall be convertible into shares of Common Stock at Subject to and upon compliance with the option provisions of the HolderFiscal Agency Agreement, in whole or in part a holder of Securities is entitled, at its option, at any time and from time to time, on or after the Original Issue Date (subject to date that is the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum later of (i) the quotient obtained by dividing Exchange Date and (xii) the outstanding date of the effectiveness of the Registration Statement to be filed by the Company under the Securities Act relating to the Common Stock issuable upon conversion of the Restricted Securities (the "Registration Date") and on or before the close of business on April 15, 2004 or in the case of a Security or portion thereof that is called for redemption by the Company, or the holder thereof elects to have such Security or portion thereof redeemed by the Company pursuant to Section 3(d) hereof, then in respect of such Security or such portion thereof until and including, but (unless the Company and the Guarantor default in making the payment due upon redemption) not after, the close of business on the 15th day next preceding the date fixed for redemption (or if such date is not a business day, as described in Section 11 hereof in New York City, then the next succeeding business day), to convert such Security (or any portion of the principal amount thereof which is U.S. $1,000 or an integral multiple thereof), at the principal amount thereof, or of such portion, into fully paid and nonassessable shares ("Conversion Shares") (calculated as to each conversion to the nearest 1/1000 of a share) of common stock, par value $.10 per share of the Company ("Common Stock"), at a Conversion Price equal to U.S. $16.50 aggregate principal amount of this Debenture to be converted and Securities for each Conversion Share (ythe "Conversion Price") (or at the current adjusted Conversion Price if an adjustment has been made as provided herein) by surrender of the Security, or in the case of a Security submitted for redemption pursuant to Section 3(d) hereof, satisfactory evidence of such submission, together with (as defined hereini) if a Bearer Security, all unmatured coupons and any matured coupons in default appertaining thereto, PAGE and if a Registered Security (if so required by the Company or the Fiscal Agent), instruments of transfer in form satisfactory to the Company and the Fiscal Agent, duly executed by the registered holder or by his duly authorized attorney, and (ii) the conversion notice hereon duly executed (x) at the principal corporate trust office of the Fiscal Agent, or at such other office or agency of the Company as may be designated by it for such purpose in New York City, or (y) subject to any laws or regulations applicable thereto and subject to the right of the Company to terminate the appointment of any such conversion agency, at the office of the Principal Agent in London, and if the Securities are listed on the Luxembourg Stock Exchange and so long as listed thereon, Bankers Trust Luxembourg, S.A, ▇▇ ▇▇▇▇▇▇▇▇▇, ▇. ▇. ▇▇▇▇▇▇▇▇▇, L-2450 Luxembourg, Luxembourg, or at such other offices or agencies as the Company may designate.
(b) In the case of a conversion after the close of business on a Record Date next preceding any interest payment date and before the opening of business on such interest payment date, the holder of record of a Registered Security at such Record Date is to receive an installment of interest on the interest payment date. No payment or adjustment shall be made upon any conversion for dividends on the Common Stock delivered on conversion. Except as set forth in the first sentence of this subsection (b), accrued interest from the immediately preceding interest payment date until the date of conversion (together with any Additional amounts, if any, thereon) will be paid to the holder within five business days after presentment for conversion on account of any interest accrued on the Securities surrendered for conversion, except that interest on Registered Securities surrendered for conversion after the close of business on a Record Date and before the opening of business on the next succeeding interest payment date shall be paid in an amount equal to (I) the product of (x) interest payable on such interest payment date on the outstanding principal amount being surrendered for conversion. No fractions of this Debenture to shares or scrip representing fractions of shares will be converted and issued or delivered on conversion, but instead of any fractional interest the Company shall pay a cash adjustment as provided in the Fiscal Agency Agreement. Such conversion shall be so effected by the Company, except payment of accrued interest (ytogether with Additional Amounts, if any, thereon) which will be paid by the product Paying Agent.
(i) In case at any time the Company shall pay or make a dividend or other distribution on any class of (1) capital stock of the quotient obtained by dividing .12 by 360 and (2) the number Company in shares of days for which such principal amount was outstandingCommon Stock, divided by (II) the Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced so that the same shall equal the price determined by multiplying such Conversion Date, provided, that if Price by a fraction of which the Company numerator shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderoutstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the PAGE total number of shares of Common Stock constituting such dividend or other distribution, such adjustment to become effective immediately after the opening of business on the day following the date fixed for such determination.
(ii) In the case at any time the Company shall (A) subdivide its outstanding shares of Common Stock, (B) Notwithstanding anything combine its outstanding shares of Common Stock into a smaller number of shares, or (C) issue by reclassification of its shares of Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation) any shares of capital stock, the Conversion Price in effect at the effective date of such subdivision, combination or reclassification shall be proportionately adjusted so that the holder of any Security surrendered for conversion after such time shall be entitled to receive the contrary contained hereinaggregate number and kind of shares which, if on such Security had been converted immediately prior to such time, the holder would have owned upon such conversion and been entitled to receive upon such subdivision, combination or reclassification. Such adjustment shall become effective immediately after the effectiveness of such subdivision, combination or reclassification. Such adjustment shall be made successively whenever any Conversion Date:event listed above shall occur.
(1iii) In case at any time the Company shall fix a record date for the issuance of rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase Common Stock at a price per share less than the current market price per share of Common Stock (determined as provided in paragraph (v) of this subsection (c)) on such record date, the Conversion Price in effect at the opening of business on the day following such record date shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in close of business on such record date plus the number of shares of Common Stock;Stock which the aggregate of the offering price of the total number of shares so offered for subscription or purchase would purchase at such current market price per share of Common Stock and the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following such record date. Such reduction shall be made successively whenever such a record date is fixed; and in the event that such rights or warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such record date had not been fixed.
(2iv) In case at any time the Underlying Shares issuable Company shall fix a record date for such conversion the making of a distribution, by dividend or otherwise, to all holders of its shares if Common Stock, of PAGE evidences of its indebtedness or assets (including securities, but excluding any interest payable dividend or distribution referred to in sharesparagraph (i) of this subsection (xc), any rights or warrants referred to in paragraph (iii) are of this subsection (c), and any dividend or distribution paid in cash out of the retained earnings of the Company), then in each such case the Conversion Price in effect after such record date shall be determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, of which numerator shall be the total number of outstanding shares of Common Stock multiplied by the current market price per share of Common Stock (determined as provided in paragraph (v) of this subsection (c)) on such record date, less the fair market value (as determined by the Board of Directors of the Company, whose determination shall be conclusive and described in a statement filed with the Principal Agent) of the portion of the assets or evidences of indebtedness so to be distributed, and of which denominator shall be the total number of outstanding shares of Common Stock multiplied by such current market price per share of Common Stock. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that such distribution is not registered for resale pursuant so made, the Conversion Price shall again be adjusted to an effective Underlying Shares Registration Statement be the Conversion Price which would then be in effect if such record date has not been fixed.
(v) For the purpose of any computation under paragraphs (iii) and (yiv) may not of this subsection (c), the current market price per share of Common Stock on any date shall be sold without volume restrictions pursuant deemed to Rule 144(k) promulgated under be the Securities Act average of the Closing Prices (as defined below) for the 15 consecutive trading days upon which the principal trading market for the Common Stock is open and selected by the Company commencing not less than 20 nor more than 30 days before the day in Section 6);
(3) question. The "Closing Price" for any day shall be the last reported sales prices regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices regular way, in either case on the American Stock Exchange or, if the Common Stock is not or admitted to trading on such exchange, on the principal national securities exchange on which the Common Stock is listed or quoted for admitted to trading or, if not listed or admitted to trading on any national securities exchange, the OTC closing sale price quoted on the Nasdaq National Market, or on a Subsequent Market;if not so quoted, as determined by the Company.
(4vi) The Company may make such adjustments in the Conversion Price, in addition to those required by paragraphs (i), (ii) and, (iii) selected by the Company has failed of this section, as it considers to timely satisfy its conversion obligations hereunder; orbe advisable in order that any event treated for United States Federal income tax purposes as a dividend of stock or stock rights shall not be taxable to the recipients.
(5vii) No adjustment in the issuance Conversion Price shall be required unless such adjustment would require an increase or decrease of at least U.S. $.25 in such Conversion Price; provided, however, that any adjustment which by reason of this PAGE paragraph (vii) is not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this subsection (c) shall be made to the nearest cent or to the nearest 1/1000 of a share, as the case may be.
(d) Whenever the Conversion Price is adjusted and in the event of certain other corporate actions, as herein provided, the Company shall give notice, all as provided in the Fiscal Agency Agreement.
(e) The Company shall file, as soon as practicable following the Closing Date, a shelf registration statement with the United States Securities and Exchange Commission covering the resale of the shares of Common Stock would result in a violation issuable upon conversion of Sections 4(a)(iithe Restricted Securities ("Registrable Securities"), then, ; provided that any holder of any Restricted Securities or Registrable Securities shall not sell any shares pursuant to such registration statement unless and until it provides to the Company such information as the Company may not pay interest reasonably request for use in kind connection with the identification of such holder as a selling stockholder in such registration statement, or any prospectus included therein, and must pay interest no such sale shall be made by such holder pursuant to such registration statement unless and until such information is included by the Company in cash such registration statement or prospectus. The Company shall in good faith use its best efforts and at its cost to cause such registration statement to be declared effective as promptly as practicable thereafter and to include in such registration statement the information provided by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to a holder as a selling stockholder and shall notify the product of (a) the outstanding principal amount Principal Agent of the Debentures effectiveness thereof and agrees to use its best efforts to (i) cause all registrations with, and to obtain any approvals by, any governmental authority under any Federal or state law of the United States that may be converted on required in connection with the conversion of the Securities into Common Stock and the resale thereof, (ii) maintain the effectiveness of such Conversion Date and (bregistrations until the date that Rule 144(k) under the product Securities Act is available for the resale of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock issuable upon conversion of the Restricted Securities (or other securities issuable upon conversion of the Securities) and (iii) to list the shares of Common Stock required to be issued or delivered upon conversion of Securities (or other securities issuable upon conversion of the Securities) prior to such issue or delivery on such national securities exchange or automated over-the-counter trading market where such Common Stock is listed or traded at the option time of such delivery. The Company and the HolderGuarantor, in whole or in part at any time jointly and from time severally, shall, without limitation as to time, after the Original Issue Date (subject indemnify and hold harmless, to the limitations on conversion set forth fullest extent permitted by law, each holder of Registrable Securities, the officers, directors and agents and employees of each of them, each person who controls such holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended) and the officers, directors, agents and employees of any PAGE such controlling person, from and against all losses, claims, damages, liabilities, costs (including, without limitation, the costs of preparation and attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering any such registration statement, or related prospectus or in any amendment or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are based solely upon information, if any, furnished in writing to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debentureby such holder expressly for use therein; provided, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and that the Company shall maintain records showing not be liable to any holder of Registrable Securities to the principal amount converted and the date extent that any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if either (a)(i) such conversions. In the event of any dispute holder failed to send or discrepancy, the records deliver as required a copy of the Holder shall be controlling final prospectus with or prior to the delivery of written confirmation of the sale by such holder of a Registrable Security to the person asserting the claim from which such Losses arise and determinative (ii) the prospectus would have completely corrected such untrue statement or alleged untrue statement or such omission or alleged omission; or (b)(i) such untrue statement or alleged untrue statement, omission or alleged omission is completely corrected in an amendment or supplement to the absence prospectus and (ii) having previously been furnished by or on behalf of manifest error.the Company with copies of the prospectus as so amended or supplemented, such holder thereafter fails to deliver as required such prospectus as so amended or supplemented, prior to or concurrently with the s
Appears in 1 contract
Conversion. (i) Conversion at Option of Holder.
(A) This Debenture shall ------------------------------ be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding equals the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and by (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if -------- the Company Holder shall have timely elected to pay receive the interest due on a Conversion Date in cash pursuant to the terms hereofcash, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a ---------- "Conversion Notice") including a completed Conversion Schedule in the form of ----------------- Schedule 1 to the Conversion Notice (on each Conversion Date, the "Conversion ---------- ---------- Schedule"). The Conversion Notice Schedule shall set forth the remaining principal -------- amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal --------------- amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made entries set forth in the Conversion NoticeSchedule. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Sources: Convertible Debenture (Aquatic Cellulose International Corp)
Conversion. (A) This Debenture 4.1 Subject as hereinafter provided and without prejudice to any rights with respect to any accrued but unpaid dividends on Preference Shares, each Preference Shareholder shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part entitled at any time and in the manner set out in this Paragraph 4 to convert all or a portion of his/its Preference Shares into fully paid Ordinary Shares (the "CONVERSION RIGHT") at the rate of 1 Ordinary Share for every 1.03 Preference Shares, (subject to adjustment in accordance with Paragraph 4.7 below (the "CONVERSION RATE"). Provided that, for the purposes of ensuring the continued listing of the Purchaser on HKSE after the conversion of the Preference Shares, the Directors may, in their absolute discretion, decline to allot and issue Ordinary Shares if, as a result of the exercise by a Preference Shareholder of his/its Conversion Right, the Ordinary Shares issued upon such conversion together with any Ordinary Shares then in issue would result in the minimum prescribed percentage of Ordinary Shares in "public hands" (as defined in the Listing Rules from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). not being satisfied.
4.2 The number of shares of Common Stock issuable upon a conversion hereunder Conversion Right shall be determined exercisable by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions Preference Shareholder by delivering to the Company Purchaser the certificate relating to the Preference Shares to be converted ("PREFERENCE SHARE CERTIFICATE") together with a duly completed notice of conversion substantially in the form attached hereto as Exhibit A from time to time prescribed by the board of directors (a "CONVERSION NOTICE") (which notice shall specify a date being not less than [5 Business Days] after the date of the Conversion NoticeNotice as the date for the conversion to be effected (the "CONVERSION DATE"). The Conversion Notice shall set forth ) in respect of all or a portion of the remaining principal amount of this Debenture Preference Shares held by such Preference Shareholder and all accrued and unpaid interest thereon subsequent delivering the same to the conversion Purchaser or to the agent of the Purchaser appointed for such purpose at issue. The date on which any time not less than [5 Business Days] prior to a Conversion Notice is delivered is Date, together with such other evidence, if any, as the "Conversion Date." Unless board of directors may reasonably require to prove the Holder is converting title of the entire principal amount outstanding under this Debenture, person exercising such right and the Holder is not be required to physically surrender this Debenture to the Company payment of all taxes and stamp issue and registration duties (if any) arising on conversion in order to effect conversionsany jurisdiction. Subject to Section 4(b), each A Conversion Notice, once given, shall may not be irrevocablewithdrawn without the consent in writing of the Purchaser. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal Subject to the applicable conversionDirectors not exercising their discretion in accordance with paragraph 4.1, which conversion shall be evidenced by notations made take place on the Conversion Date specified in the Conversion NoticeNotice (in the place of delivery). The Holder and Preference Share Certificate shall be cancelled on the Company shall maintain records showing the principal amount converted and the date of such conversionsrelevant Conversion Date. In the event that the Preference Share Certificate represents a greater number of Preference Shares than is to be converted, the Purchaser shall, within [3 Business Days] after the relevant Conversion Date issue to the Preference Shareholder a new Preference Share Certificate for the balance of the Preference Shares which are not to be converted.
4.3 Preference Shareholders shall be entitled to be paid any accrued but unpaid dividends in respect of Preference Shares. The Ordinary Shares to which any Preference Shareholder shall become entitled in consequence of exercising his/its right to convert shall carry the right to receive all dividends declared on such Ordinary Shares and other distributions declared made or paid upon the Ordinary Shares in respect of the financial year of the Purchaser in which such shares are allotted and shall rank pari passu in all other respects and form one class with the Ordinary Shares in issue at the relevant Conversion Date and fully paid save that they shall not be entitled to any dividends or other distributions declared, paid or made either in respect of any dispute financial period ended prior to such Conversion Date or discrepancyby reference to a record date prior to such Conversion Date or to the extent that the Preference Shares so converted shall already have participated in such dividend.
4.4 Within [3 Business Days] after the relevant Conversion Date, the records Purchaser shall forward to each holder a definitive certificate for the appropriate number of fully paid Ordinary Shares and, if appropriate, a cheque in respect of any fractional entitlement.
4.5 So long as Preference Shares remain capable of being converted into Ordinary Shares, then if the Holder Purchaser is placed in Liquidation the Purchaser shall be controlling and determinative forthwith give notice thereof in the absence of manifest errorwriting to all Preference Shareholders.
Appears in 1 contract
Conversion. (Aa) This Debenture shall be convertible into shares of Common Stock at Subject to and upon compliance with the option provisions of the HolderFiscal Agency Agreement, in whole or in part a holder of Securities is entitled, at its option, at any time and from time to time, on or after the Original Issue Date (subject to date that is the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum later of (i) the quotient obtained by dividing Exchange Date and (xii) the outstanding date of the effectiveness of the Registration Statement to be filed by the Company under the Securities Act relating to the Common Stock issuable upon conversion of the Restricted Securities (the "Registration Date") and on or before the close of business on June 30, 2004 or in the case of a Security or portion thereof that is called for redemption by the Company, or the holder thereof elects to have such Security or portion thereof redeemed by the Company pursuant to Section 3(d) hereof, then in respect of such Security or such portion thereof until and including, but (unless the Company and the Guarantor default in making the payment due upon redemption) not after, the close of business on the 15th day next preceding the date fixed for redemption (or if such date is not a business day, as described in Section 11 hereof in New York City, then the next succeeding business day), to convert such Security (or any portion of the principal amount thereof which is U.S. $1,000 or an integral multiple thereof), at the principal amount thereof, or of such portion, into fully paid and nonassessable shares ("Conversion Shares") (calculated as to each conversion to the nearest 1/1000 of a share) of common stock, par value $.10 per share of the Company ("Common Stock"), at a Conversion Price equal to U.S. $12.10 aggregate principal amount of this Debenture to be converted and Securities for each Conversion Share (ythe "Conversion Price") (or at the current adjusted Conversion Price if an adjustment has been made as provided herein) by surrender of the Security, or in the case of a Security submitted for redemption pursuant to Section 3(d) hereof, satisfactory evidence of such submission, together with (as defined hereini) if a Bearer Security, all unmatured coupons and any matured coupons in default appertaining thereto, and if a Registered Security (if so required by the Company or the Fiscal Agent), instruments of transfer in form satisfactory to the Company and the Fiscal Agent, duly executed by the registered holder or by his duly authorized attorney, and (ii) the conversion notice hereon duly executed (x) at the principal corporate trust office of the Fiscal Agent, or at such other office or agency of the Company as may be designated by it for such purpose in New York City, or (y) subject to any laws or regulations applicable thereto and subject to the right of the Company to terminate the appointment of any such conversion agency, at the office of the Principal Paying Agent in London, and if the Securities are listed on the Luxembourg Stock Exchange and so long as listed thereon, Bankers Trust Luxembourg, S.A, 14 Boulevard, F.D. Roosevelt, L-2450 Luxembourg, Lu▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇fices or agencies as the Company may designate. In lieu of issuing shares of Common Stock upon such conversion, the Company may elect, in its sole discretion, to pay cash (including Additional Amounts, if any) in respect of all or a portion of the shares of Common Stock otherwise issuable upon such conversion based on the Market Price of such shares, all as provided in the Fiscal Agency Agreement.
(b) In the case of a conversion after the close of business on a Record Date next preceding any interest payment date and before the opening of business on such interest payment date, the holder of record of a Registered Security at such Record Date is to receive an installment of interest on the interest payment date. No payment or adjustment shall be made upon any conversion for dividends on the Common Stock delivered on conversion. Except as set forth in the first sentence of this subsection (b), accrued interest from the immediately preceding interest payment date until the date of conversion (together with any Additional amounts, if any, thereon) will be paid to the holder within five business days after presentment for conversion on account of any interest accrued on the Securities surrendered for conversion, except that interest on Registered Securities surrendered for conversion after the close of business on a Record Date and before the opening of business on the next succeeding interest payment date shall be paid in an amount equal to (I) the product of (x) interest payable on such interest payment date on the outstanding principal amount being surrendered for conversion. No fractions of this Debenture to shares or scrip representing fractions of shares will be converted and issued or delivered on conversion, but instead of any fractional interest the Company shall pay a cash adjustment as provided in the Fiscal Agency Agreement. Such conversion shall be so effected by the Company, except payment of accrued interest (ytogether with Additional Amounts, if any, thereon) which will be paid by the product Paying Agent in accordance with the provisions for payment of interest (1together with Additional Amounts, if any, thereon) set forth herein.
(i) In case at any time the quotient obtained by dividing .12 by 360 and (2) Company shall pay or make a dividend or other distribution on any class of capital stock of the number Company in shares of days for which such principal amount was outstandingCommon Stock, divided by (II) the Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced so that the same shall equal the price determined by multiplying such Conversion Date, provided, that if Price by a fraction of which the Company numerator shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderoutstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares of Common Stock constituting such dividend A-14PAGE or other distribution, such adjustment to become effective immediately after the opening of business on the day following the date fixed for such determination.
(ii) In the case at any time the Company shall (A) subdivide its outstanding shares of Common Stock, (B) Notwithstanding anything combine its outstanding shares of Common Stock into a smaller number of shares, or (C) issue by reclassification of its shares of Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation) any shares of capital stock, the Conversion Price in effect at the effective date of such subdivision, combination or reclassification shall be proportionately adjusted so that the holder of any Security surrendered for conversion after such time shall be entitled to receive the contrary contained hereinaggregate number and kind of shares which, if on such Security had been converted immediately prior to such time, the holder would have owned upon such conversion and been entitled to receive upon such subdivision, combination or reclassification. Such adjustment shall become effective immediately after the effectiveness of such subdivision, combination or reclassification. Such adjustment shall be made successively whenever any Conversion Date:event listed above shall occur.
(1iii) In case at any time the Company shall fix a record date for the issuance of rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase Common Stock at a price per share less than the current market price per share of Common Stock (determined as provided in paragraph (v) of this subsection (c)) on such record date, the Conversion Price in effect at the opening of business on the day following such record date shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in close of business on such record date plus the number of shares of Common Stock;Stock which the aggregate of the offering price of the total number of shares so offered for subscription or purchase would purchase at such current market price per share of Common Stock and the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following such record date. Such reduction shall be made successively whenever such a record date is fixed; and in the event that such rights or warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such record date had not been fixed.
(2iv) In case at any time the Underlying Shares issuable Company shall fix a record date for such conversion the making of a distribution, by dividend or otherwise, to all holders of its shares if Common Stock, of evidences of its indebtedness or assets (including securities, A-15PAGE but excluding any interest payable dividend or distribution referred to in sharesparagraph (i) of this subsection (xc), any rights or warrants referred to in paragraph (iii) are of this subsection (c), and any dividend or distribution paid in cash out of the retained earnings of the Company), then in each such case the Conversion Price in effect after such record date shall be determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, of which numerator shall be the total number of outstanding shares of Common Stock multiplied by the current market price per share of Common Stock (determined as provided in paragraph (v) of this subsection (c)) on such record date, less the fair market value (as determined by the Board of Directors of the Company, whose determination shall be conclusive and described in a statement filed with the Fiscal Agent) of the portion of the assets or evidences of indebtedness so to be distributed, and of which denominator shall be the total number of outstanding shares of Common Stock multiplied by such current market price per share of Common Stock. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that such distribution is not registered for resale pursuant so made, the Conversion Price shall again be adjusted to an effective Underlying Shares Registration Statement be the Conversion Price which would then be in effect if such record date has not been fixed.
(v) For the purpose of any computation under paragraphs (iii) and (yiv) may not of this subsection (c), the current market price per share of Common Stock on any date shall be sold without volume restrictions pursuant deemed to Rule 144(k) promulgated under be the Securities Act average of the Closing Prices (as defined below) for the 15 consecutive trading days upon which the principal trading market for the Common Stock is open and selected by the Company commencing not less than 20 nor more than 30 days before the day in Section 6);
(3) question. The "Closing Price" for any day shall be the last reported sales prices regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices regular way, in either case on the American Stock Exchange or, if the Common Stock is not or admitted to trading on such exchange, on the principal national securities exchange on which the Common Stock is listed or quoted for admitted to trading or, if not listed or admitted to trading on any national securities exchange, the OTC closing sale price quoted on the Nasdaq National Market, or on a Subsequent Market;if not so quoted, as determined by the Company.
(4vi) The Company may make such adjustments in the Conversion Price, in addition to those required by paragraphs (i), (ii) and, (iii) selected by the Company has failed of this section, as it considers to timely satisfy its conversion obligations hereunder; orbe advisable in order that any event treated for United States Federal income tax purposes as a dividend of stock or stock rights shall not be taxable to the recipients.
(5vii) No adjustment in the issuance Conversion Price shall be required unless such adjustment would require an increase or decrease of at least U.S. $.25 in such Conversion Price; provided, however, that any adjustment which by reason of this paragraph (vii) is not required to be made shall be carried
A- 16PAGE forward and taken into account in any subsequent adjustment. All calculations under this subsection (c) shall be made to the nearest cent or to the nearest 1/1000 of a share, as the case may be.
(d) Whenever the Conversion Price is adjusted and in the event of certain other corporate actions, as herein provided, the Company shall give notice, all as provided in the Fiscal Agency Agreement.
(e) The Company shall file, as soon as practicable following the Closing Date, a shelf registration statement with the United States Securities and Exchange Commission covering the resale of the shares of Common Stock would result in a violation issuable upon conversion of Sections 4(a)(iithe Securities ("Registrable Securities"), then, ; provided that any holder of any Securities or Registrable Securities shall not sell any shares pursuant to such registration statement unless and until it provides to the Company such information as the Company may not pay interest reasonably request for use in kind connection with the identification of such holder as a selling stockholder in such registration statement, or any prospectus included therein, and must pay interest no such sale shall be made by such holder pursuant to such registration statement unless and until such information is included by the Company in cash such registration statement or prospectus. The Company shall in good faith use its best efforts and at its cost to cause such registration statement to be declared effective as promptly as practicable thereafter and to include in such registration statement the information provided by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to a holder as a selling stockholder and shall notify the product of (a) the outstanding principal amount Fiscal Agent of the Debentures effectiveness thereof and agrees to use its best efforts to (i) cause all registrations with, and to obtain any approvals by, any governmental authority under any Federal or state law of the United States that may be converted on required in connection with the conversion of the Securities into Common Stock and the resale thereof, (ii) maintain the effectiveness of such Conversion Date and (bregistrations until the date that Rule 144(k) under the product Securities Act is available for the resale of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock issuable upon conversion of the Restricted Securities (or other securities issuable upon conversion of the Securities) and (iii) to list the shares of Common Stock required to be issued or delivered upon conversion of Securities (or other securities issuable upon conversion of the Securities) prior to such issue or delivery on such national securities exchange or automated over-the-counter trading market where such Common Stock is listed or traded at the option time of such delivery. The Company and the HolderGuarantor, in whole or in part at any time jointly and from time severally, shall, without limitation as to time, after the Original Issue Date (subject indemnify and hold harmless, to the limitations on conversion set forth fullest extent permitted by law, each holder of Registrable Securities, the officers, directors and agents and employees of each of them, each person who controls such holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended) and the officers, directors, agents and employees of any such controlling person, from and against all losses, claims, damages, liabilities, costs (including, without limitation, the costs of preparation and attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering any such registration statement, or related prospectus or in any amendment or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are based solely upon information, if any, furnished in writing to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debentureby such holder expressly for use therein; provided, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and that the Company shall maintain records showing not be liable to any holder of Registrable Securities to the principal amount converted and the date extent that any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if either (a)(i) such conversions. In the event of any dispute holder failed to send or discrepancy, the records deliver as required a copy of the Holder shall be controlling final prospectus with or prior to the delivery of written confirmation of the sale by such holder of a Registrable Security to the person asserting the claim from which such Losses arise and determinative in (ii) the absence of manifest error.prospectus would have completely corrected such untrue statement or alleged untrue statement or such o
Appears in 1 contract
Conversion. (Aa) This Debenture Subject to the provisions of this Article III and of Article I, at the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof, the shares of each of Acquisition and MDJB shall be convertible into converted as follows:
(i) Each of the shares of capital stock of Acquisition issued and outstanding immediately prior to the Effective Time shall remain outstanding;
(ii) Subject to the provisions of Section 3.3, each share of MDJB Common Stock, no par value per share (collectively, the "Shares") issued and outstanding immediately prior to the Effective Time shall be converted into the right to receive the Per Share Stock Consideration; and
(iii) Each outstanding share of MDJB Common Stock at the option as to which a written notice of election to dissent is filed in accordance with Title 7-113 of the Holder, in whole CBCA at or in part at any time and from time to time, after the Original Issue Date (subject prior to the limitations on conversion Stockholders' Meeting and not withdrawn at or prior to the Stockholders' Meeting and which is not voted in favor of the Merger shall not be converted into or represent a right to receive ▇▇▇▇▇▇▇ Common Stock hereunder unless and until the holder shall have failed to perfect, or shall have effectively withdrawn or lost his or her right to appraisal of and payment for his or her MDJB Common Stock under such Title, at which time his or her shares shall be converted into ▇▇▇▇▇▇▇ Common Stock as set forth in Section 4(a)(ii3.1(a) hereof(ii). All such shares of MDJB Common Stock as to which such a written demand for appraisal is so filed and not withdrawn at or prior to the time of such vote and which are not voted in favor of the Merger are herein called "Dissenting Stock." MDJB shall give ▇▇▇▇▇▇▇ prompt notice upon receipt by MDJB of any written demands for appraisal rights or withdrawal of such demands, and MDJB shall give ▇▇▇▇▇▇▇ the opportunity to direct all negotiations and proceedings with respect to such demands. MDJB shall not voluntarily make any payment with respect to any demands for appraisal rights and shall not, except with the prior written consent of ▇▇▇▇▇▇▇, settle or offer to settle any such demands. Each holder of MDJB Common Stock who becomes entitled, pursuant to provisions of said Title 7-113, to payment for his or her shares of MDJB Common Stock under the provisions of said title shall receive the fair market value (as determined pursuant to Title 7-113) for each share of Dissenting Stock in payment therefor from ▇▇▇▇▇▇▇ and such shares of MDJB Common Stock shall be canceled.
(b) The number calculations of the computations required by this Article III shall be prepared by ▇▇▇▇▇▇▇ prior to the Closing date and shall be set forth in a statement furnished to MDJB not later than one day prior to Closing showing in reasonable detail the manner of calculation.
(c) Each of the shares of MDJB capital stock held by ▇▇▇▇▇▇▇ or any of its wholly owned Subsidiaries or MDJB or any of its wholly owned Subsidiaries shall be canceled and retired at the Effective Time and no consideration shall be issued in exchange therefor.
(d) Subject to the terms of Section 3.2 hereof, each holder of shares of MDJB Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash exchanged pursuant to the terms hereof, subsection Merger who would otherwise have been entitled to receive a fraction of a share of ▇▇▇▇▇▇▇ Common Stock (iiafter taking into account all certificates delivered by such holder) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holderreceive, in whole or in part at any time and from time to timelieu thereof, after the Original Issue Date cash (subject to the limitations on conversion set forth in Section 4(a)(iiwithout interest) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to such fractional part of a share of ▇▇▇▇▇▇▇ Common Stock multiplied by the applicable conversionclosing price of the ▇▇▇▇▇▇▇ Common Stock on the trading day immediately preceding the Closing as reported by the American Stock Exchange (the "Fractional Share Consideration"). No such holder will be entitled to dividends, which voting rights or any other rights as a stockholder in respect of any fractional share.
(e) At the Effective Time, the stock transfer books of MDJB shall be evidenced closed as to holders of MDJB Common Stock and no transfer of MDJB Common Stock by notations any such holder shall thereafter be made or recognized. If, after the Effective Time, certificates are properly presented in accordance with Article IV of this Agreement to ▇▇▇▇▇▇▇'▇ stock transfer agent or such other agent as the parties may agree (the "Exchange Agent"), such certificates shall be canceled and, subject to the terms of Section 3.2 and Article 7A hereof, exchanged for certificates representing the number of whole shares of ▇▇▇▇▇▇▇ and a check representing the amount of cash for fractional shares, if any, into which the MDJB Common Stock represented thereby was converted in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorMerger.
Appears in 1 contract
Conversion. Upon the consummation of the Company’s immediate subsequent financing (Athe “New Financing”), the Principal of this Note then outstanding (including all accrued but unpaid Interest thereon) This Debenture shall automatically convert (an “Automatic Conversion”) into the same securities and contain the same terms offered in the New Financing except that the conversion price shall be convertible into equal to the lowest of: (i) the closing price of the Company’s shares of common stock (“Common Stock”) on the NYSE Amex (or on the principal trading market for the Common Stock if it is not then listed on the NYSE Amex) on the date on which the Company publicly announces the consummation of the transactions contemplated in the SPA, (ii) the closing price of the Company’s shares of Common Stock at on the option NYSE Amex (or on the principal trading market for the Common Stock if it is not then listed on the NYSE Amex) upon the Closing (as defined in the SPA) of the Holdertransactions contemplated in the SPA, or (iii) ninety percent (90%) of the price at which the securities are sold in whole or in part the New Financing. In addition, the Holder may, at any time and from time prior to timean Automatic Conversion, after convert the Original Issue Date Principal of this Note then outstanding (subject including all accrued but unpaid Interest thereon) (a “Voluntary Conversion” and, together with an Automatic Conversion, a “Conversion”) at a conversion equal to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum lower of (i) or (ii) above, by giving notice of a Voluntary Conversion to the quotient obtained by dividing (x) Company. Notwithstanding the outstanding principal amount of this Debenture foregoing, the Holder may not convert the Note pursuant to be converted and (y) a Voluntary Conversion prior to the Conversion Price Company obtaining Stockholder Approval (as defined herein), and (iibelow) without the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation prior written consent of the number of shares of Common Stock issuable upon a conversion hereunderMajority Noteholders.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Conversion. (Aa) This Debenture Subject to and upon compliance with the provisions of this Section 4, and subject to the Corporation's right to redeem shares of Series C surrendered for conversion pursuant to Section 3(h) hereof, on or after January 10, 1999, the holder of any shares of this Series C shall be convertible have the right, at its option, to convert the shares into a number of fully paid and nonassessable shares of Common Stock at (calculated as to each conversion to the option nearest 1/100th of a share) equal to $_____ for each share surrendered for conversion divided by the Conversion Price (as defined in paragraph (d) of this Section 4 below) by surrendering the shares to be converted, in the manner provided in paragraph (b) of this Section 4 below; PROVIDED HOWEVER, that if the Corporation shall have called some or all of the Holdershares of this Series C for redemption, such right shall terminate on the close of business on the third business day next preceding the date fixed for redemption unless the Corporation has defaulted in whole making or in part at any time providing for the payment due on the date fixed for redemption. Anything herein to the contrary notwithstanding, the shares of this Series C shall become immediately convertible under the circumstances, and from time to time, after the Original Issue Date (subject to the limitations on conversion terms and conditions, set forth in paragraph (i) of this Section 4(a)(ii4.
(1) hereofIn order to exercise the conversion privilege, the holder of each share of this Series C to be converted shall surrender the certificate representing such share to the Conversion Agent for this Series C appointed for such purpose by the Corporation (the "Conversion Agent"), or, if no Conversion Agent has been appointed or if the holder has not received notice of such appointment, then to the Corporation, with the Notice of Election to Convert on the back of said certificate duly completed and signed, together with funds equal to the Dividend Amount, if any, required to be paid under paragraph (b)(2) of this Section 4 below, at the principal office of the Conversion Agent or the Corporation, as the case may be. Unless the shares issuable on conversion are to be issued in the same name as the name in which the shares of this Series C are registered, each share surrendered for conversion shall be accompanied by instruments of transfer, in form satisfactory to the Corporation, duly executed by the holder or its duly authorized attorney and by funds in an amount sufficient to pay any transfer or similar tax.
(2) The holders of shares of this Series C at the close of business on a Dividend Record Date shall be entitled to receive the dividend payable on those shares on the corresponding Dividend Payment Date notwithstanding the conversion of the shares after the Dividend Record Date or the Corporation's default in payment of the dividend due on the Dividend Payment Date. However, shares of this Series C surrendered for conversion during the period between the close of business on any Dividend Record Date and the opening of business on the corresponding Dividend Payment Date (except shares called for redemption on a date fixed for redemption during that period) must be accompanied by payment of an amount equal to the dividend payable on the shares on the Dividend Payment Date (the "Dividend Amount"). The dividend with respect to a share of this Series C called for redemption during the period from the close of business on the Record Date to the opening of business on the corresponding Dividend Payment Date will be payable upon such Dividend Payment Date, and the holder converting such share of this Series C need not include a payment of such dividend amount upon surrender of such share of this Series C. The holders of shares of this Series C on a Dividend Record Date who (or whose transferees) convert any of those shares on or after the corresponding Dividend Payment Date will receive the dividend payable by the Corporation on those shares of this Series C on the Dividend Payment Date, and need not include payment of the Dividend Amount upon surrender of those shares for conversion. Except as provided above, the Corporation shall make no payment or adjustment for accrued and unpaid dividends on shares of this Series C, whether or not in arrears, on conversion of those shares, or for dividends on the shares of Common Stock issued upon the conversion.
(3) As promptly as practicable after the surrender by a holder of the certificates for shares of this Series C in accordance with this paragraph (b), and subject to the Corporation's right to redeem all or a part of such Series C shares as provided in Section 3(h) hereof, the Corporation shall issue and shall deliver at the office of the Conversion Agent to the holder, or on its written order, a certificate or certificates for the number of full shares of Common Stock issuable upon the conversion of those shares in accordance with the provisions of this paragraph (b)(3), and any fractional interest in respect of a share of Common Stock arising upon the conversion hereunder shall be determined by adding the sum of settled as provided in paragraph (ic) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture Section 4 below.
(4) Unless the Corporation shall have exercised its right to redeem the shares of Series C surrendered for conversion pursuant to this Section 4, each conversion shall be deemed to have been effected as of the close of business on the 10th business day after the date on which all of the conditions specified in paragraph (b)(1) of this Section 4 above shall have been satisfied, and, the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such conversion shall be deemed to have become the holder or holders of record of the shares of Common Stock represented by those certificates at such time on such date and such conversion shall be at the Conversion Price in effect at such time on such date, unless the stock transfer books of the Corporation shall be closed on that date, in which event such person or persons shall be deemed to have become such holder or holders of record at the close of business on the next succeeding day on which such stock transfer books are open, but such conversion shall be at the Conversion Price in effect on the 10th business day after the date upon which all of the conditions specified in paragraph (b)(1) of this Section 4 above shall have been satisfied. All shares of Common Stock delivered upon conversion of this Series C will upon delivery be duly and validly issued and fully paid and nonassessable, free of all liens and charges and not subject to any preemptive rights. Upon the surrender of certificates representing shares of this Series C to be converted and the failure of the Corporation to provide to the holder thereof a notice of redemption pursuant to paragraph (yh) of Section 3 hereof prior to the Conversion Price 10th business day after the date on which all of the conditions specified in paragraph (b)(1) of this Section 4 shall have been satisfied, the shares shall no longer be deemed to be outstanding and all rights of a holder with respect to the shares surrendered for conversion shall immediately terminate except the right to receive the Common Stock or other securities, cash or other assets as herein provided (including without limitation any dividend payable as specified in paragraph (b)(1) of this Section 4 above).
(c) No fractional shares or securities representing fractional shares of Common Stock shall be issued upon conversion of this Series C. Any fractional interest in a share of Common Stock resulting from conversion of a share of this Series C shall be paid in cash (computed to the nearest cent) based on the price (as defined herein), and in paragraph (iid)(4) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to Section 4 below) of the Common Stock on the Trading Day (as defined in paragraph (d)(4) below) next preceding the day of conversion. If more than one share shall be converted and (y) surrendered for conversion at one time by the product of (1) the quotient obtained by dividing .12 by 360 and (2) same holder, the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of whole shares of Common Stock issuable upon a the conversion hereunder.
(B) Notwithstanding anything to shall be computed on the contrary contained herein, if on any Conversion Date:
(1) basis of the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act aggregate Liquidation Preference (as such term is defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of paragraph (a) the outstanding principal amount of Section 7 below) of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion DateSeries C so surrendered." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Conversion. (A) This Debenture shall be convertible Subject to the best price guarantees and anti-dilutive rights set forth below, the TFST hereby agrees to immediately convert all of its Class A Bonds into shares of Colmena's Common Stock at the option of the HolderStock, in whole or accordance with their terms, which Colmena hereby represents will result in part at any time and from time to time, after the Original Issue Date (subject issuance to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation TFST of the number of shares of Common Stock issuable upon Colmena's common stock set forth in Exhibit 2 (A) annexed hereto and made a part hereof, the conversion hereunderbeing effected without registration under the Securities Act or the Florida Act, based on the exemption from registration provided by Section 4(6) of the Securities Act and Section 517.061(11) of the Florida Act.
(B) Notwithstanding anything Subject to the contrary contained hereinbest price guarantees and anti-dilutive rights set forth below, if on any Conversion Date:
(1) the number of TFST hereby converts the Colmena Debt into shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Colmena Common Stock;
, at a conversion price of $0.01 per share, as set forth below on Exhibit 2 (2) B), the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold transaction being effected without volume restrictions pursuant to Rule 144(k) promulgated registration under the Securities Act (as defined in Section 6);
(3) or the Common Stock is not listed or quoted for trading Florida Act, based on the OTC or on a Subsequent Market;
(4exemption from registration provided by Section 4(6) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date Securities Act and (bSection 517.061(11) of the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingFlorida Act.
(C) This Debenture shall be convertible into shares of Common Stock at In consideration for the option agreement by the TFST to accelerated conversion of the Holder, in whole or in part at any time Class A Bonds and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date of the Colmena Debt to Colmena common stock, which will result in the issuance of a materially smaller quantity of Colmena common stock to the TFST than would have otherwise been issuable based on which current Colmena business plans, Colmena hereby irrevocably covenants and agrees, as a Conversion Notice is delivered is material inducement to the entry into this Agreement by the TFST, that all of the shares issuable to the TFST pursuant to the terms of this Agreement, including, without limitation, the shares to be issued in exchange for conversion of the Colmena Debt and to be issued on conversion of the Class A Bonds (the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(bCovered Shares"), each Conversion Notice, once givenwhether or not then still owned by the TFST, shall be irrevocable. Conversions hereunder shall have increased by the effect issuance of lowering additional shares of Colmena common stock to the outstanding principal amount TFST, to reflect the issuance of any common stock or common stock purchase rights at a price of less than $0.01 per share (in cash or in the net tangible book value in accordance with GAAP of any assets or services paid therefor) during the 730 days following the execution of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversionAgreement, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.as follows:
Appears in 1 contract
Sources: Conversion Agreement (Colmena Corp)
Conversion. Subject to Sections 1.5(d), 1.8, 1.9 and 1.10, at the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the Company or any stockholder of the Company, each share of Company Capital Stock outstanding immediately prior to the Effective Time shall be converted into the right to receive from Parent, following the surrender of the certificate representing such share of Company Capital Stock in accordance with Section 1.10, the following consideration:
(i) each share of Company Capital Stock held in the Company’s treasury or owned by Parent, Merger Sub, the Company or any direct or indirect wholly-owned subsidiary of Parent, Merger Sub or the Company immediately prior to the Effective Time, if any, shall be canceled without payment of any consideration with respect thereto;
(ii) each share of Series A Preferred Stock outstanding immediately prior to the Effective Time shall be converted into the right to receive: (A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, an amount in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount cash equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of to: (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act Series A Preference Per Share Amount (as defined in Section 61.5(b);
); plus (2) the Residual Upfront Per Share Amount (as defined in Section 1.5(b)); minus (3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
Indemnification Escrow Contribution Amount (as defined in Section 1.5(b)) per share of Series A Preferred Stock; minus (4) the Company Expenses Escrow Contribution Amount (as defined in Section 1.5(b)) per share of Series A Preferred Stock; plus (B) any cash disbursements required to be made from the Indemnification Escrow Fund with respect to such share to the former holder thereof in accordance with the terms of the Escrow Agreement, as and when such disbursements are required to be made; plus (C) any Certain confidential information contained in this document, marked by brackets, has failed been omitted and filed separately with the Securities and Exchange Commission pursuant to timely satisfy its conversion obligations hereunderRule 24b-2 of the Securities Exchange Act of 1934, as amended. cash disbursements required to be made from the Expenses Escrow Fund with respect to such share to the former holder thereof in accordance with the terms of the Escrow Agreement, as and when such disbursements are required to be made; orplus (D) any amounts required to be paid (or shares of Parent Common Stock to be issued) by Parent with respect to such share to the former holder thereof in accordance with the terms of Sections 1.7 and 1.8, as and when such payments (or issuances) are required to be made;
(5iii) each share of Series A-1 Preferred Stock outstanding immediately prior to the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, Effective Time shall be converted into the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, right to receive: (A) an amount in cash equal to the product of to: (a1) the outstanding principal amount of the Debentures to be converted on such Conversion Date and Series A-1 Preference Per Share Amount (bas defined in Section 1.5(b)); plus (2) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.Residual Upfront Per Share Amount; minus
Appears in 1 contract
Sources: Agreement and Plan of Merger (Onyx Pharmaceuticals Inc)
Conversion. (Aa) This Debenture P▇▇▇▇'s right to Convert. Except as provided in Paragraph 3(g)(iii) below, Payee shall be convertible have the right, at any time commencing on the date that Maker shall have effected the Share Authorizarion defined in Section 3(h) below until the close of business on the day the Obligations are paid in full, to cause the conversion (a “Conversion”) of all or any portion (if such portion is Five Thousand ($5,000) Dollars or a whole multiple of Five Thousand ($5,000) Dollars) of the Principal, and Interest as provided in Section 2 above, outstanding at the time such Conversion is effected (the "Convertible Obligations") into shares of Common Stock at (the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof"Underlying Shares"). The number of shares price for Conversion, subject to adjustment as provided in Section 4 below, shall be Fifty ($0.50) Cents per share (the “Conversion Rate”), subject to adjustment as provided below. Maker will not issue a fractional share of Common Stock issuable upon a conversion hereunder Conversion but will round any fractional share to the nearest share so that if the fraction is less than 0.5 no share shall be determined issued and if the fraction is 0.5 or higher Maker shall issue one full share. Noble Roman’s, Inc. __.__.16
(b) Manner of Conversion. Payee may exercise P▇▇▇▇’s Conversion right by adding completing, executing and sending to Maker a completed and executed Note Conversion Form appended hereto as Annex A (the sum of (i“Conversion Notice”) setting forth the quotient obtained by dividing (x) the outstanding principal amount of this Debenture the Convertible Obligations to be converted and (y) providing the other information required in the Conversion Price (as defined herein), and (ii) Notice. Maker shall issue the amount equal to (I) number of Underlying Shares into which the product of (x) the outstanding principal amount of this Debenture Convertible Obligations are to be converted in accordance with the Conversion Rate. If required by applicable federal or state securities laws or regulations, P▇▇▇▇ shall represent in writing to Maker prior to the receipt of the Underlying Shares that such Shares will be acquired by Payee for investment only and not for resale or with a view to the distribution thereof, and shall agree that any certificates representing the Shares may bear a legend, conspicuously noting such restriction, as Maker shall deem reasonably necessary or desirable to enable it to comply with any applicable federal and/or state laws or regulations.
(yc) Delivery of Certificates Upon Conversion. Certificates for Underlying Shares to be issued upon Conversion shall be transmitted by Maker’s transfer agent (the product “Transfer Agent”) to Payee (A) by crediting the account of P▇▇▇▇’s prime broker with the Depository Trust Company through its Deposit Withdrawal Agent Commission (“DWAC”) system if Maker is then a participant in such system and there is either (1) an effective Registration Statement, as defined in Section 5 below, permitting the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation issuance of the number Underlying Shares to or resale of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, Underlying Shares by Payee or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered eligible for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold by Payee without volume restrictions or manner-of-sale limitations pursuant to Rule 144(k) promulgated 144 under the Securities Act Act, or (B) if Maker is not then a participant in the DWAC system and there is not an effective Registration Statement as defined aforesaid, by physical delivery of the certificates, bearing the restrictive legends required by Section 3(b) above if the Underlying Shares are otherwise not publicly tradable or without such restrictive legends if the Underlying Shares are otherwise publicly tradable or eligible for resale by the Maker without volume or manner-of-sale limitations pursuant to Rule 144, to the address specified by Payee in Section 6);
the Conversion Notice by the date that is three (3) Business Days after the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
later of (4i) the Company has failed delivery to timely satisfy its conversion obligations hereunder; or
Maker of the Conversion Notice or (5ii) the issuance surrender of this Note (such shares of Common Stock would result in a violation of Sections 4(a)(ii), thendate, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion “Underlying Share Delivery Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding”).
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Sources: Convertible Note (Noble Romans Inc)
Conversion. (A1) This Debenture shall be convertible Provided that there are no unresolved claims for losses incurred by the Company pursuant to the indemnification provisions of Section 8 of the Purchase Agreement, the holder of this Security is entitled at any time after [12 MONTHS FROM CLOSING DATE], 2003 and from time to time before the close of business on the Maturity Date, to convert the principal amount of this Security (or any portion of the principal amount hereof that is an integral multiple of $1,000), into fully paid and nonassessable Common Stock (calculated as to each conversion to the nearest 1/100 of a share) of the Company at the rate of ________(1) shares of Common Stock for each $1,000 principal amount of Security (or at the option then current adjusted rate if an adjustment has been made as provided below) (the "Conversion Rate") by surrender of this Security, duly endorsed or assigned to the Company or in blank to the Company at the Designated Office, accompanied by written notice to the Company, in the form attached hereto, that the holder hereof elects to convert this Security (or if less than the entire principal amount hereof is to be converted, specifying the portion hereof to be converted). If the holder elects to exercise its conversion right hereunder, then the Company shall, within five (5) Business Days after receipt of written notice of such election, deliver or cause to be delivered to the holder at the address specified by the holder to the Company in the conversion notice a certificate or certificates for the Common Stock issued upon such conversion and any replacement Security issued as a result of any partial conversion of this Security.
(2) Upon surrender of this Security for conversion, the holder will be entitled to payment in cash within three (3) Business Days thereafter of the Holder, in whole or in part at any time and from time to time, after interest accrued on the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be Security then being converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal unpaid to (I) the product such date of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderconversion.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) Subject to Section 2(b) below, no payment or adjustment is to be made on conversion for dividends on the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations issued on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount No fractions of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date shares or scrip representing fractions of shares will be issued on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date but instead of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.any
Appears in 1 contract
Sources: Asset Purchase Agreement (Tekelec)
Conversion. (A) This Debenture 6.1 The Outstanding Loan Amount shall be convertible into shares of Common Stock at the option convert to Shares of the HolderBorrower (such date being the “Conversion Date”) unless agreed otherwise in writing by the Lender, in whole or in part at any time and from time to time, automatically on the Listing Date.
6.2 As soon as practicable after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due and in any event on a Conversion Date in cash pursuant or prior to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Listing Date:
6.2.1 the Borrower shall issue to the Lender (1or its nominee) the that number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, fully paid Shares that is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) Conversion Amount divided by the outstanding principal amount Conversion Price, rounded upwards if necessary to the nearest whole Share:
6.2.2 the Borrower shall enter the name of the Debentures Lender (or its nominee) in its register of shareholders as the owner of those Shares;
6.2.3 the Borrower shall file a Form SH01 at Companies House in respect of the Shares being issued; and
6.2.4 the Borrower shall send a share certificate evidencing those Shares to be converted on such Conversion Date and the Lender (b) or its nominee),
6.3 If the product Borrower complies with all of (x) its obligations under this clause 6, the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture Loan shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions reduced by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversionConversion Amount.
6.4 The Borrower shall procure that it has sufficient unissued Shares and all necessary shareholder consents and approvals as may be required to issue Shares to the Lender pursuant to this clause 6.
6.5 If the Borrower makes:
6.5.1.1 an issue of shares by way of capitalisation of profits or reserves (including any share premium account or capital redemption reserve to the holders of Shares);
6.5.1.2 a sub-division or consolidation of Shares;
6.5.1.3 a distribution in specie;
6.5.1.4 a repayment, which return or distribution of capital (including a distribution of capital profits (whether realised or not) or capital reserves); or
6.5.1.5 any event similar to those described in the preceding paragraphs occurs, then the Conversion Price shall be evidenced adjusted in such manner as determined in good faith by notations made the Borrower to ensure that the Lender obtains the same economic benefit in the Conversion Notice. The Holder event that it exercises its conversion right under this Clause, as it would have done but for that event.
6.6 Where the Outstanding Loan Amount is converted into Shares in accordance with this clause 6, such conversion shall constitute a full and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records final discharge of the Holder shall be controlling and determinative in Borrower’s obligation to repay the absence of manifest errorrelevant Conversion Amount.
Appears in 1 contract