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. (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. (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. 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. (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. (A) This Debenture shall be convertible into shares of Common Stock at the option Subject to adjustment as provided in Section 5.12(b)(ix), each of the Holderholders of the Class C Convertible Preferred Units shall have the right (the “Holder Conversion Right”), at any time (1) during any Holder Early Conversion Period or (2) following the second anniversary of the Class C Issue Date, to require conversion in whole or in part at any time and from time to timeof its Class C Convertible Preferred Units into Common Units, after the Original Issue Date (subject to the limitations on conversion conditions set forth in this Section 4(a)(ii) hereof5.12(b)(vii). 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 Subject to adjustment as provided in Section 5.12(b)(ix), the Partnership (acting pursuant to direction and approval of the Conflicts Committee (following consultation with the full Board of Directors and the executive officers of the General Partner) with respect to any Class C Convertible Preferred Units then owned by any of the initial holders of Class C Convertible Preferred Units, as set forth on Schedule [X] hereto, or their Affiliates) shall have the right (the “Partnership Forced Conversion Right”), at any time during any Partnership Forced Conversion Period, to convert in whole or in part (but in no event shall a Partnership Forced Conversion Notice relate to Class C Convertible Preferred Units that are convertible into Common Units having a market value, based on the average trading price calculated in accordance with the first paragraph of the definition of “Partnership Forced Conversion Period,” of less than $100 million in the aggregate (provided, that if less than such amount remains outstanding, such Partnership Forced Conversion Notice must relate to all of the Class C Convertible Preferred Units then outstanding)) the Class C Convertible Preferred Units into Common Units, subject to the contrary contained herein, conditions set forth in this Section 5.12(b)(vii) and only if there is no accrued and unpaid distribution on any Conversion Date:
(1) the number of shares of Common Stock Class C Convertible Preferred Units 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) giving 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 Partnership Forced 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 outstandingNotice.
(C) This Debenture Any Common Units delivered as a result of conversion pursuant to this Section 5.12(b)(vii) shall be convertible into shares of Common Stock at the option validly issued, fully paid and non-assessable (except as such non-assessability may be affected by matters described in Sections 17-303, 17-607 and 17-804 of the HolderDelaware Act), in whole free and clear of any liens, claims, rights or in part at any time and from time to timeencumbrances other than those arising under the Delaware Act or this Agreement, after or created by 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 conversionsholders thereof. Subject to Section 4(badjustment as provided in Sections 5.9 and 5.12(b)(ix), 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 Class C Convertible Preferred Units will convert into Common Units on a one-for-one basis upon exercise of the Holder Conversion Right or the Partnership Forced Conversion Right. Immediately following any conversion, the rights of the holders of converted Class C Convertible Preferred Units, including, without limitation, any accrual of distributions, shall cease and the Persons entitled to receive the Common Units upon the conversion of Class C Convertible Preferred Units shall be controlling and determinative treated for all purposes as having become the owners of such Common Units.
(D) In order to exercise the Holder Conversion Right, the holder of any Class C Convertible Preferred Unit to be converted shall surrender the Certificate representing such Class C Convertible Preferred Unit, duly endorsed or assigned to the Partnership or in the absence of manifest error.blank, at any
Appears in 3 contracts
Sources: Purchase and Sale Agreement, First Amended and Restated Agreement of Limited Partnership (QR Energy, LP), Purchase and Sale Agreement (QR Energy, LP)
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. (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. (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. (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. 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. (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. (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. (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. (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. (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 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) 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. (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. 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. (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. (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. (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. (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. 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. (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. (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. $1.35 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 (Healthcare Capital Corp)
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. (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. (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. (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. (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. (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. (Aa) This Debenture Notwithstanding anything contained herein to the contrary, upon delivery from a Converting Lender to the Collateral Agent, the Trustee, the Loan Agent, the Rating Agency and the Borrowers of a notice substantially in the form of Exhibit C hereto, a Converting Lender may elect any Payment Date (such Payment Date, a “Conversion Date”) upon which all or a portion of the Aggregate Outstanding Amount of the Loans held by such Converting Lender shall be convertible converted into shares Class A-1a Notes of Common Stock at the option an equal aggregate principal amount in accordance with Section 2.5 of the HolderIndenture; provided that (i) each Conversion Date shall be no earlier than the fifth Business Day following the date such notice is delivered (or such earlier date as may be reasonably agreed to by the Lender, the Collateral Agent, the Loan Agent and the Trustee), (ii) each Conversion Date shall only occur on a Payment Date and (iii) the Aggregate Outstanding Amount of Loans converted into Class A-1a Notes on any Payment Date shall not be less than $20,000,000. On each Conversion Date, the Aggregate Outstanding Amount of the Class A-1a Notes shall be increased by the Aggregate Outstanding Amount of the Loans so converted. The Loans so converted will cease to be outstanding and will be deemed to have been repaid in full for all purposes under the Indenture and under this Agreement. No Class A-1a Notes may be converted into Loans.
(b) The Lenders agree to provide reasonable assistance to the Trustee, the Collateral Agent and the Loan Agent in connection with such conversion, including, but not limited to, providing applicable instructions to DTC.
(c) Notwithstanding anything herein to the contrary, each Lender may elect, in whole its sole discretion, to exercise the Conversion Option concurrently with an assignment of all or in part at any time and from time to time, after a portion of its Loans (an “Assignment/Conversion”) such that the Original Issue Effective Date (subject to as defined in the limitations Assignment Agreement attached as Exhibit B hereto) of the assignment occurs on conversion the related Conversion Date and the assignee receives Class A-1a Notes in lieu of the portion of the Loans being assigned. Any assignment made in connection with an Assignment/Conversion shall meet the requirements for an assignment set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder 8.4 and shall be determined by adding made only to a Person that is entitled to acquire Class A-1a Notes in accordance with the sum of (i) transfer restrictions set forth in the quotient obtained by dividing (x) Indenture. Any Lender electing to make an Assignment/Conversion shall deliver to the outstanding principal amount of this Debenture Collateral Agent, the Trustee, the Loan Agent and the Borrowers at least five Business Days prior 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(w) an executed Assignment Agreement, 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 of Exhibit A C hereto, (y) the assignment fee required to be paid pursuant to Section 8.4(c) hereof and (z) a "Conversion Notice"). The Conversion Notice shall certification from the assignee that the assignee is entitled to acquire Class A-1a Notes in accordance with the transfer restrictions 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 errorIndenture.
Appears in 2 contracts
Sources: Credit Agreement (Silver Point Specialty Lending Fund), Credit Agreement (Silver Point Specialty Lending Fund)
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 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. (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. (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. (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. 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. (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. (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. 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. (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 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. The Members will take all actions reasonably requested by the Board in connection with an Initial Public Offering to effect a reorganization (an “IPO Reorganization”) of the Company into a corporation or other Entity (such corporation or other Entity being referred to as the “Successor Entity”) and causing all of the Interests to be transferred, exchanged or converted (free and clear of all liens, encumbrances, restrictions and adverse claims (other than those created by this Agreement)), as determined by the Board, into securities of the same class as the Publicly Offered Securities; provided, however, that (A) This Debenture shall in the event of any such IPO Reorganization, each Member’s Interests will be convertible into shares of Common Stock at the option of the Holdertransferred for, in whole or in part at any time and from time to timeexchanged or converted into, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The that number of shares of Common Stock issuable upon common stock having a conversion hereunder shall be determined by adding value (based on the sum of (iprice to the public in the Initial Public Offering) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture equal to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal that such Member would 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 on the Conversion Date, provided, that have received if the Company shall have timely elected to pay (or a successor thereto) had been liquidated following the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection sale of 100% of its assets (iiand assumption of 100% of its liabilities) 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 consideration in an amount equal to the applicable conversionCompany’s value implied by the per share price to the public of the Initial Public Offering and such consideration was distributed under Section 10.02(a), which (B) any such IPO Reorganization shall be evidenced by notations made effective on, and conditioned upon the occurrence of, such Initial Public Offering and (C) the Company will not effect an IPO Reorganization without the approval of the Transaction Committee, unless the rights and obligations of the Tiger Member in the Conversion Notice. The Holder Successor Entity immediately following the IPO Reorganization are, in all material respects, the same as the rights and obligations of the Tiger Member in the Company prior to consummation of the IPO Reorganization. In connection with an IPO Reorganization, the parties hereto shall, and shall maintain records showing cause the principal amount converted and Successor Entity to, enter into a stockholders, partnership or similar agreement providing the date Members who became stockholders, partners or other holders of equity interests of the Successor Entity in connection with such IPO Reorganization with rights with respect to their investment in the Successor Entity that are equivalent to the rights of such conversionsMembers under Article VI and Article XI hereof and subjecting such Members to obligations with respect to their investment in the Successor Entity that are equivalent to the obligations of the Members under Article VI and Article XI hereof. In For the purpose of this Section 11.04, in the event of any dispute or discrepancyan IPO Reorganization, after the records occurrence of such IPO Reorganization, respectively, all references to the Holder shall Company in this Section 11.04 will be controlling and determinative in deemed to refer to the absence of manifest errorSuccessor Entity.
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. (Aa) This Debenture At the option of the Holder, this Note shall be convertible into shares of Common Stock at of the option Maker on the terms and conditions set forth in this Section 2. Notwithstanding the foregoing, if the conversion of this Note pursuant to this Section 2 would otherwise result in the Holder, in whole together with its Affiliates, owning more than 9.99% of the outstanding Common Stock calculated on an as-converted, fully-diluted basis (including as outstanding shares of capital stock issuable upon exercise or in part at any time and from time to timeconversion of all outstanding Options, after Purchase Rights or other Convertible Securities of the Original Issue Date Maker), immediately following the conversion of the Note (subject to the limitations on conversion set forth in Section 4(a)(ii“9.99% Threshold”), the Outstanding Amount shall be converted into (i) hereof). The that number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding that would result in the sum of Maker reaching, but not exceeding, the 9.99% Threshold (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“9.99% Shares”), and (ii) the an amount in cash equal to the difference between (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (yA) the product of (1) the quotient obtained number of 9.99% Shares issued upon conversion, multiplied by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by Conversion Price and (IIB) the Outstanding Amount.
(b) Subject to Sections 2(a), 2(c) and 2(d) hereof, at any time between the Issuance Date and 11:59 p.m. New York City time on the Business Day immediately preceding the Maturity Date (the “Conversion Price Deadline”), the Holder shall be entitled to convert all, but not less than all, of the then Outstanding Amount into shares of Common Stock based on the Conversion DateRate described in Section 2(c) below. All shares of Common Stock issued upon conversion of this Note (i) shall be duly issued, 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 fully paid and non-assessable and (ii) shall not be used in subject to any Liens, preemptive rights or other transfer restrictions. The Maker shall pay any and all transfer, stamp and similar taxes that may be payable with respect to the calculation of the number issuance and delivery of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to of this Note; provided, that 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 Maker shall not be sold without volume restrictions pursuant to Rule 144(k) promulgated under responsible for the Securities Act (payment of any income taxes that may be incurred by the Holder 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 result 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 outstandingconversion.
(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 Promissory Note (Regulus Therapeutics Inc.)
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. (Ai) This The Holder of this Debenture shall be convertible into shares of Common Stock is entitled, at its option, at any time from and after the option first anniversary of the Holderdate hereof, to convert the principal amount of this Debenture, in whole or in part at any time and from time (but if in part, not as to time, after less than $10,000 of the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) principal amount hereof), into shares of common stock of the Company, par value $1.00 per share (the "Common Stock"), at a conversion price for each share of Common Stock equal to seventy-five cents (US $.75) (the "Conversion Price"). The number (For example, if this Debenture were in the original principal amount of $100,000 and the Holder were to convert $75,000 in principal amount of this Debenture, the Holder would receive 100,000 shares of Common Stock issuable upon in respect of such conversion and (as described below in this Section 1) a conversion hereunder shall be determined by adding new Debenture of like tenor in the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) $25,000. In addition, the Conversion Price (as defined herein)Holder would receive, 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 or in the calculation of the number of shares of Common Stock issuable upon a conversion hereundervalued at $.75 per share, accrued interest on the portion of the Debenture so converted.)
(Bii) Conversion shall be effected by surrender of this Debenture, with the form of conversion notice attached hereto as Exhibit A, duly executed by the Holder, to the Company evidencing such Hold▇▇'▇ ▇ntention to convert this Debenture or a specified portion hereof, and accompanied, if required by the Company, by proper assignment hereof in blank. Interest accrued and unpaid on the principal amount hereof to be so converted shall, at the option of the Company, be paid in cash or Common Stock upon conversion. No fraction of shares or scrip representing fractions of shares will be issued on conversion. Subject to subsection (c) hereof, the date on which notice of conversion is given shall be deemed to be the date on which the Holder has delivered this Debenture, with the conversion notice duly executed, to the Company, or if earlier, the date set forth in such notice of conversion if the Debenture is received by the Company within three (3) business days therefrom. Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number Company elects to prepay all or a portion 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 this Debenture pursuant to an effective Underlying Shares Registration Statement Section 3 hereof, the right to convert the portion of the Debenture to be prepaid shall expire unless the Company shall have actually received this Debenture and a duly executed notice of conversion not later than three (y3) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act business days preceding any Prepayment Date (as defined in Section 63);
(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. 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.
(Aa) This Debenture shall be convertible into shares If the Notice of Common Stock at Conversion is issued in the option timeframe required under the Construction Phase Financing Agreement and all conditions with respect thereto and with respect to the purchase of the HolderGovernmental Note are satisfied, Conversion will occur on the Conversion Date indicated in whole such Notice of Conversion. If the Notice of Conversion is not so issued or in part at any time all conditions with respect thereto and from time to time, after the Original Issue Date (subject with respect to the limitations funding of the Funding Loan are not so satisfied, then Conversion will not occur and neither the ▇▇▇▇▇▇▇ Mac Seller/Servicer nor ▇▇▇▇▇▇▇ ▇▇▇ will have any obligations with respect to the purchase of the Governmental Note or otherwise with respect to the Loan or the Project.
(b) If the Conditions to Conversion are satisfied 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 or before the sum of Forward Commitment Maturity Date, Conversion will occur on the Conversion Date and, on such Conversion Date, (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture Bonds shall be subject to be converted and (y) the Conversion Price (as defined herein)mandatory tender in accordance with Section 3.01 hereof, and (ii) the amount equal to purchase price of the Bonds shall be paid with amounts on deposit in the Collateral Fund (Iand/or other Eligible Funds hereunder), (iii) a portion of the product of (x) the outstanding principal amount of the Bonds shall be cancelled such that the principal amount outstanding equals the Actual Project Loan Amount (as determined by the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇/Servicer at such time), (iv) the Bonds shall be removed from the Book-Entry System and converted into a physical Governmental Note (in the form attached to the Funding Loan Agreement) which shall be purchased by the ▇▇▇▇▇▇▇ ▇▇▇ Seller/Servicer, (v) the Funding Loan Agreement attached hereto as Appendix C and the Project Loan Agreement attached hereto as Appendix D shall be delivered by the respective parties and become effective and shall supersede this Debenture Indenture and the Loan Agreement, respectively, (vi) the proceeds of the ▇▇▇▇▇▇▇ ▇▇▇ Seller/Servicer Purchase Price shall be delivered to the Trustee for deposit into the Permanent Loan Purchase Fund, and certain funds of the Borrower shall be converted delivered to the Title Company, (vii) the Mortgage Loan shall be paid in part with amounts on deposit in the Collateral Fund (pursuant to Section 4.08(c) hereof) and in part with amounts held by the Title Company, as applicable and (yviii) all security related to the product Mortgage Loan shall be released or assigned to the ▇▇▇▇▇▇▇ ▇▇▇ Seller/Servicer. If the Conditions to Conversion are not satisfied on or before the Forward Commitment Maturity Date, the Loan will not convert from the Construction Phase to the Permanent Phase, and neither the ▇▇▇▇▇▇▇ ▇▇▇ Seller/Servicer nor ▇▇▇▇▇▇▇ ▇▇▇ will have any obligation with respect to the purchase of the Governmental Note.
(1c) Provided all Conditions to Conversion are satisfied, the quotient obtained by dividing .12 by 360 Issuer and (2) Trustee agree to execute and deliver the number of days for which such principal amount was outstandingFunding Loan Agreement, divided by (II) the Conversion Price Governmental Note and Project Loan Agreement 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 hereofcompletion of the attached forms, including filling in the Conversion Date, the Actual Project Loan Amount and attaching the final amortization schedule in accordance with subsection (iid) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderbelow.
(Bd) Notwithstanding anything The Governmental Note shall mature on the Maturity Date, subject to earlier prepayment as provided in the Funding Loan Agreement. The unpaid principal balance of the Governmental Note shall be paid on the dates and in the amounts set forth on the initial Funding Loan Amortization Schedule provided on the Closing Date and attached as Schedule 1 to the contrary contained hereinGovernmental Note (the “Funding Loan Amortization Schedule”) if the Conversion Date occurs on or prior to the initial Forward Commitment Maturity Date. If the Forward Commitment Maturity Date is extended by ▇▇▇▇▇▇▇ ▇▇▇ in accordance with the ▇▇▇▇▇▇▇ ▇▇▇ Commitment and the Construction Phase Financing Agreement, 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 first principal payment date under the Securities Act Funding Loan Amortization Schedule shall automatically be extended to the first day of the month immediately succeeding the Conversion Date (as defined with the succeeding principal installments remaining consistent with the original schedule but for them occurring on later dates). Additionally, in Section 6);
(3) the Common Stock is not listed or quoted for trading event the outstanding amount of the Funding Loan on the OTC or Conversion Date is less than the starting principal amount set forth in the initial Funding Loan Amortization Schedule, a new Funding Loan Amortization Schedule will be generated on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of Conversion Date at 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 lesser outstanding principal amount of based on the Debentures parameters set forth in the ▇▇▇▇▇▇▇ Mac Commitment. In the event the initial Funding Loan Amortization Schedule is modified in accordance with this Section 2.12(d), a replacement Funding Loan Amortization Schedule will be provided by the ▇▇▇▇▇▇▇ ▇▇▇ Seller/Servicer which will be attached to be converted the Governmental Note on such the 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 outstandingDate.
(Ce) This Debenture In addition to the Conditions to Conversion set forth in the ▇▇▇▇▇▇▇ ▇▇▇ Commitment and the Construction Phase Financing Agreement, Conversion shall be convertible into shares of Common Stock at conditioned upon the option delivery 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 items 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 2.10 of the Holder shall be controlling and determinative in the absence of manifest errorFunding Loan Agreement.
Appears in 1 contract
Sources: Trust Indenture
Conversion. (A) This Debenture shall be convertible ABC hereby converts $________ of the AmeriNet Debt into shares of Common Stock AmeriNet unregistered Preferred Stock, at a conversion price of $_____ per share, the option transaction being effected without registration under the Securities Act or the Florida Act, based on the exemption from registration provided by Section 4(6) of the Holder, in whole or in part at any time Securities Act and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii517.061(11) 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 hereunderFlorida Act.
(B) Notwithstanding anything In consideration for ABC' conversion of the AmeriNet Debt, AmeriNet hereby agrees to issue to ABC the contrary contained herein____ shares of AmeriNet' Preferred Stock subscribed for hereby.
(C) As a material inducement to AmeriNet's consideration of ABC' offer to convert AmeriNet Debts into the ABC' shares, if on any Conversion DateABC represents, warrants and covenants to AmeriNet, as follows:
(1) ABC is familiar with the number requirements for treatment as an "accredited investor" under Regulation D and Section 4(6) of shares the Securities Act and meets one or more of Common Stock at the time authorizeddefinitions of an "accredited investor" contained in Rule 501(a) promulgated under authority of Securities Act and has, unissued alone or together with its advisors or representatives, if any, such knowledge and unreserved for all purposesexperience in financial matters that ABC is capable of evaluating the relative risks and merits of this subscription, or held as treasury stockthe text of Rule 501(a) being set forth, is insufficient to pay interest hereunder in shares of Common Stockfull, above;
(2) ABC acknowledges that it has, based on its own substantial experience, the Underlying Shares issuable ability to evaluate the transactions contemplated hereby and the merits and risks thereof in general and the suitability of the transaction for such conversion (including any interest payable it 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)particular;
(3a) ABC understands that the Common offer and issuance of AmeriNet Stock is not listed or quoted for trading being made in reliance on ABC's representation that it has reviewed AmeriNet's Exchange Act Reports and, has become familiar with the OTC or on a Subsequent Marketinformation disclosed therein, including that contained in exhibits filed therewith.
(b) ABC is fully aware of the material risks associated with becoming an investor in AmeriNet and confirms that it was previously informed that all documents, records and books pertaining to this investment have been available from AmeriNet and that all documents, records and books pertaining to this transaction requested by it have been made available to it;
(4) ABC has had an opportunity to ask questions of and receive answers from the Company has failed to timely satisfy its conversion obligations hereunder; orofficers of AmeriNet concerning the terms and conditions of this Agreement and the transactions contemplated hereby, as well as the affairs of AmeriNet and related matters;
(5) ABC has had an opportunity to obtain additional information necessary to verify the accuracy of the information referred to in subparagraphs (a), (b), (c) and (d) hereof, as well as to supplement the information in the Exchange Act Reports;
(6) ABC has represented to AmeriNet that it has the general ability to bear the risks of the subject trans action and that it is a suitable investor for a private offering and ABC hereby affirms the correctness of such information to AmeriNet, including, without limitation, the representations in the form of the investment letter annexed hereto and made a part hereof as exhibit 3(D)(6);
(7) ABC acknowledges and is aware that:
(a) The AmeriNet Stock is a speculative investment with no assurance that AmeriNet will be successful, or if successful, that such success will result in payments to ABC or to realization of capital gains by ABC on disposition of the AmeriNet Stock; and
(b) The AmeriNet Stock to be issued to it has not been registered under the Securities Act or under any state securities laws, accordingly ABC may have to hold such Preferred Stock and may not be able to liquidate, pledge, hypothecate, assign or transfer it;
(8) ABC has obtained its own opinion from its legal counsel to the effect that after an examination of the transactions associated herewith and the applicable law, no action needs to be taken by either ABC or AmeriNet in conjunction with this Agreement and the issuance of the AmeriNet Stock in conjunction therewith, other than such shares actions as have already been taken in order to comply with the securities law requirements of Common Stock would result ABC' state of domicile, including the safe harbor provided in a violation of Sections 4(a)(ii), then, conjunction with compliance with 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 Florida Rule; and
(9) (a) The certificates for the outstanding principal amount AmeriNet Stock will bear restrictive legends and AmeriNet's transfer agent will be instructed not to transfer the subject securities unless they have been registered pursuant to Section 6 of the Debentures Securities Act or an opinion of counsel to be converted on such Conversion Date ABC satisfactory to legal counsel to AmeriNet 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 HolderAmeriNet's president has been provided, 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 that the proposed transaction is exempt from registration requirements imposed 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 DebentureSecurities Act, 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 Exchange Act and unpaid interest thereon in an amount equal to the any 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 state or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorforeign laws.
Appears in 1 contract
Conversion. (Aa) This Debenture Subject to and in compliance with the provisions of this Section 6, the Registered Holder shall be convertible into shares of Common Stock at have the option of the Holder, in whole or in part right at any time and from time to timeconvert all or a portion of the outstanding principal sum of this Debenture, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The including any unpaid accrued interest thereon, into such number of shares of the Company's Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) equal to the quotient obtained by dividing (x) the outstanding principal amount sum, plus any unpaid accrued interest thereon, of this Debenture to be converted and by (y) One Dollar ($1.00) (the "Conversion Price (as defined herein), Price") and (ii) the amount equal to (I) the product of (x) the outstanding principal amount by surrender of this Debenture to the Company, such surrender to be converted and made in the manner provided in this Section 6.
(yb) In order to exercise the product conversion right described in Section 6(a), the Registered Holder shall surrender this Debenture to the Company, at the address of the Company set forth in Section 23 hereof, accompanied by a duly executed Notice of Conversion in the form attached to this Debenture. Unless the shares issuable on conversion are to be issued in the same name as the name in which this Debenture is registered, this Debenture shall be accompanied by instruments of transfer, in form reasonably satisfactory to the Company, duly executed by the Registered Holder or the Registered ▇▇▇▇▇▇'s duly authorized agent.
(1c) As promptly as practicable after the quotient obtained by dividing .12 by 360 and (2) the number surrender of days for which such principal amount was outstandingthis Debenture, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay issue and shall deliver (or shall cause the interest due on a Conversion Date in cash pursuant issuance and delivery) to the terms hereofRegistered Holder, subsection (ii) shall not be used in or on written order of the calculation of Registered Holder, a certificate or certificates for the number of shares of Common Stock issuable upon the conversion of this Debenture in accordance with the provisions of this Section 6. Any fractional interest in respect of a share of Common Stock arising upon conversion hereunder.
(Bshall be settled as provided in Section 8(b) Notwithstanding anything hereof. Each conversion shall be deemed to have been effected immediately prior to the contrary contained hereinclose of business on the date on which this Debenture shall have been surrendered and the Notice of Conversion received by the Company, if on and the person or persons in whose name or names any Conversion Date:
(1) the number of certificate or certificates for 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 shall be issuable for upon such conversion (including any interest payable in shares) (x) are not registered for resale pursuant shall be deemed to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under have become the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed 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, 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 record of the Debentures to be converted shares represented thereby at such time and 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 outstandingdate.
(Cd) 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 If 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 is not converted, the Company shall also issue and unpaid interest thereon deliver to the Registered Holder a new Debenture of like tenor in an amount the principal sum equal to the applicable conversion, principal which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount was not converted and dated 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 errorIssuance Date.
Appears in 1 contract
Sources: Convertible Debenture (Airtech International Group Inc)
Conversion. (A) This Debenture shall The entire principal amount of this Note and accrued interest on this Note may be convertible into shares of Common Stock at the option converted, under discretion of the Holder, wholly or partially into shares of the Company’s equity securities (the “Equity Securities”) issued and sold at the close of the Company’s next equity financing in whole a single transaction or a series of related transactions yielding gross proceeds to the Company of at least $50,000,000.00 in part at any time and from time to timethe aggregate (excluding the conversion of the Note) (the “Next Equity Financing”) consummated prior to, on or after the Original Issue Date Maturity Date. Such conversion right shall expire if not exercised within three (subject to 3) months of the limitations closing of the Next Equity Financing. In the event that the lead investor in the Next Equity Financing is not a holder of Equity Securities of the Company on conversion set forth in Section 4(a)(ii) hereofthe date hereof or an affiliate thereof (a “Related Investor”). The , then the number of shares of Common Stock issuable Equity Securities to be issued upon a such conversion hereunder shall be determined by adding the sum of (i) equal to the quotient obtained by dividing (xi) the outstanding entire principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and Note plus accrued interest by (ii) 80% of the amount equal to (I) price per share of 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 outstandingEquity Securities, 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 rounded to the terms hereofnearest whole share, 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 Equity Securities upon such conversion shall be upon the terms and subject to the conditions applicable to the Next Equity Financing; provided, however, that in a violation of Sections 4(a)(ii), thenthe event such Next Equity Financing is consummated after the Maturity Date, the Company entire principal amount of, and accrued interest on, this Note may not pay interest in kind and must pay interest in cash be converted into such number of Equity Securities as is obtained under discretion of the Holder by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of dividing (ai) the outstanding entire principal amount of this Note plus accrued interest by (ii) 67% of the Debentures price per share of the Equity Securities, rounded to the nearest whole share, and the issuance of such shares of Equity Securities upon such conversion shall be upon the terms and subject to the conditions applicable to the Next Equity Financing. In the event that the lead investor in the Next Equity Financing is a Related Investor, then regardless of whether the Next Equity Financing is consummated before or after the Maturity Date, the number of shares of Equity Securities to be converted on issued upon such Conversion Date and (b) the product of (x) conversion shall be equal to the quotient obtained by dividing .12 by 360 and (y1) 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 entire principal amount of this Debenture and all Note plus accrued and unpaid interest thereon subsequent by (2) 100% of the price per share of the Equity Securities, rounded to the nearest whole share, and the issuance of such shares of Equity Securities upon such conversion at issueshall be upon the terms and subject to the conditions applicable to the Next Equity Financing. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under Upon such conversion of this DebentureNote, the Holder is not be required hereby agrees to physically surrender this Debenture execute and deliver to the Company all transaction documents related to the Next Equity Financing, including a purchase agreement and other ancillary agreements, with customary representations and warranties and transfer restrictions (including a lock-up agreement in order to effect conversions. Subject to Section 4(bconnection with an initial public offering), 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 having terms and conditions not less favorable to the applicable conversion, which shall be evidenced by notations made Holder than those contained in the Conversion Notice. The Holder and agreements as may be entered into by 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 other purchasers of the Holder shall be controlling and determinative Equity Securities in the absence of manifest errorNext Equity Financing.
Appears in 1 contract
Sources: Convertible Note Purchase Agreement (New Beginnings Acquisition Corp.)
Conversion. (Ai) This Debenture shall be convertible into shares of Common Stock (subject to the limitation set forth in Section 4(a)(ii)) at the option of the Holder, Holder in whole or in part at any time and from time to time, time after the Original Issue Date (subject and prior to the limitations close of business on conversion set forth in Section 4(a)(ii) hereof)the Maturity Date. 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) converted, plus all accrued but unpaid interest thereon, by the Conversion Price (Price, each 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)adjustment as provided hereunder. 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 the "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 of such Conversion Notice is deemed to have been delivered is pursuant to Section 4(h) (the "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 the Conversion Notice is not be required deemed delivered pursuant to physically surrender this Debenture to the Company in order to effect conversionsSection 4(h). Subject to Section 4(b)) hereof, 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
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. (Ai) This Debenture shall be convertible into shares In the event the Company, directly or indirectly through a Subsidiary, consummates, while the Loan remains outstanding, a transaction that results in the Company, directly or indirectly through a Subsidiary, owning all or substantially all of Common Stock the common equity interests of another Person (a “Qualified Transaction”), then, during the period commencing on the date of the closing of such Qualified Transaction and ending on December 31, 2021 (the “Conversion Exercise Period”), up to 100% of the aggregate outstanding principal amount of the Loan, together with all accrued and unpaid interest thereon, shall, at the option of the HolderBuyer, in whole or in part convert into shares of the Company’s common stock at any time a conversion price between $10.00 and from time $30.00 per share as determined pursuant to time, after this Section 2(e) (the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof“Conversion Price”). The number Company shall provide written notice to the Buyer promptly after the closing of a Qualified Transaction.
(ii) If the Buyer elects to convert a portion of the Loan pursuant to Section 2(e)(i), the Buyer shall provide written notice to the Company notifying the Company of the Buyer’s desire to convert a portion of the Loan (the “Initial Conversion Notice”). Upon receipt of an Initial Conversion Notice, the Company shall promptly retain an independent firm to provide a valuation of the shares of Common Stock issuable upon a conversion hereunder common stock of the Company as of the date of the Conversion Notification (or such earlier or later date as agreed by the Buyer and the Company) (the “Valuation”) which Valuation shall determine the Conversion Price; provided, however, that (a) if the Valuation is less than $10 per share, then the Conversion Price shall be determined equal to $10 per share and (b) if the Valuation is greater than $30 per share, then the Conversion Price shall be equal to $30 per share. The Company shall provide to the Buyer a copy of the Valuation and the determination of the Conversion Price promptly after completion of the Valuation (the “Valuation Notice”).
(iii) The Buyer shall have ten (10) Business Days (or such later date agreed to by adding the sum Company) after effective receipt of the Valuation Notice to provide the Company notice of the Buyer’s desire to convert a portion of the Loan at the Conversion Price specified in the Valuation Notice (i) the quotient obtained by dividing (x) “Final Conversion Notice”). The Final Conversion Notice shall specify the outstanding principal amount of this Debenture the Loan to be converted converted, together with all accrued and unpaid interest thereon, and the date on which such conversion is expected to occur (y) the “Conversion Price (as defined hereinDate”), which shall not be more than ten (10) Business Days (or such later date agreed to by the Company and (iithe Buyer) after the amount equal date of the Final Conversion Notice. On or prior 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 agrees to pay the interest due on a Conversion Date in cash pursuant deliver to the terms hereof, subsection (ii) shall not be used in Buyer an amended and restated Note reflecting 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 reduced outstanding principal amount of the Debentures Note and the Buyer agrees 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 deliver to the Company any documentation reasonably required by the Company to consummate such conversion (including the original of the Note (or a completed notice substantially to the effect that the original Note has been lost, stolen or destroyed) for cancellation.”
3.3 All references in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture Purchase and all accrued and unpaid interest thereon subsequent Loan Agreement to the conversion at issue“Agreement” shall refer to the Purchase and Loan Agreement as amended hereby. The date on which a Conversion Notice To the extent the terms of the Note is delivered is inconsistent with the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debentureterms hereof, the Holder Note is not be required hereby modified to physically surrender this Debenture to reflect 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 errorterms hereof.
Appears in 1 contract
Sources: Securities Purchase, Loan and Security Agreement (Capstone Holding Corp.)
Conversion. (Aa) This Debenture Conversion of the Shares may be made at the Conversion Price after effectiveness of registration under the Securities Act of the Underlying Shares, or at such time as the Underlying Shares may be sold without registration under the Securities Act in compliance with Rule 144 promulgated under the Securities Act, as follows: 0 - 30 days - One-third of investment 31 - 60 days - Two-thirds of investment After 61 days - 100% of investment
(b) Subject to the Corporation's right to redeem the Shares in certain instances as described in the Certificate of Designation, any and all Shares outstanding on the third anniversary of the Closing Date shall be convertible automatically convert into shares of Common Stock at as provided in the option Certificate of Designation.
(c) Purchaser shall convert the HolderShares to Common Stock, in whole or in part at any time by telecopying an executed and from time to timecompleted Notice of Conversion (in the form annexed hereto as Exhibit C, after the Original Issue Date (subject "Notice of Conversion") to the limitations Company and delivering the original Notice of Conversion and the certificate representing the Shares to be converted to the Company within three (3) business days of exercise. Each date on conversion set forth which a Notice of Conversion is telecopied to and received by the Company in Section 4(a)(ii) hereof)accordance with the provisions hereof shall be deemed a Conversion Date. The number of shares of Company will transmit the certificates representing the Common Stock issuable upon a conversion hereunder of all or any part of the Shares (together with the certificates representing portions of the Shares not so converted) to the Purchaser within three (3) business days after the Company has received the original Notice of Conversion and the certificate evidencing the Shares being so converted. The Notice of Conversion and certificate representing the Shares being converted shall be determined delivered to the Company at the address provided in Section 11 hereof.
(d) In the event Purchaser converts the Shares subject to the "ceiling" formula of $2.25 per share on the first one-third of the Shares converted; $2.50 per share on the second one-third of the Shares converted; and $2.75 per share on the third one-third of the Shares converted, Purchaser agrees to convert at $2.25 first, $2.50 next and $2.75 last. In the event that the Shares are not converted within ten (10) business days of receipt by adding the sum Company of (i) a valid Conversion Notice and certificates representing the quotient obtained by dividing (x) the outstanding principal amount of this Debenture Shares to be converted and (ysuch date of receipt referred to as the "Applicable Date") due to the failure of the Company to timely process the Conversion Price (Notice, as defined herein)opposed to the failure to timely process by the transfer agent, 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 hereofPurchaser, 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 hereinby wire transfer, 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 liquidated damages for such conversion (including any interest payable in shares) (x) are failure and 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 Datepenalty, an amount in cash equal to one (1%) percent per day of the product purchase price of the Shares to be converted which shall run from the Applicable Date; provided, however, that the liquidated damages for a failure to deliver certificates of Common Stock shall equal only 15% per month of the purchase price of the Shares to be converted for the first two months from the Applicable Date that the certificates of Common Stock are not delivered, and 25% per month for each month thereafter, if both of the following conditions are satisfied by the Company: (ai) the outstanding principal failure to deliver certificates of Common Stock is the result of a lack of available authorized shares of Common Stock, and (ii) the Company commences, within 15 business days after the Applicable Date, the process to obtain stockholder approval to amend its Certificate of Incorporation to increase the number of authorized shares of Common Stock by an amount sufficient to permit conversion of all shares of Convertible Preferred Stock then outstanding; provided, further, in no event shall the liquidated damages paid hereunder exceed the fair market value of the Debentures shares of Common Stock underlying the Shares 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 Applicable 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. The Holder may convert this Warrant (A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder---- ---------- "Conversion Right"), in whole or in part at any time and from time to timepart, 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 into the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything of the Company calculated pursuant to the contrary contained herein, if on any Conversion Date:
following formula by surrendering this Warrant (1with the notice of exercise form attached hereto as Exhibit C duly executed) at the principal office of the Company specifying the number of shares of Common Stock at of the time authorizedCompany, unissued and unreserved for all purposes, or held as treasury stock, is insufficient the rights to pay interest hereunder in shares purchase which the Holder desires to convert: Y (A - B) --------- X = A where: X = 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 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 be issued 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) Holder; Y = the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at subject to this Warrant for which the option Conversion Right is being exercised; A = the Fair Market Value of one share of Common Stock (as calculated in Section 1.5 hereof); B = the Purchase Price The Company agrees that the shares so converted shall be deemed to be issued to the holder hereof as the record owner of such shares as of the Holder, in whole or in part at any time and from time to time, after close of business on 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 Warrant 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 conversionsbeen surrendered as aforesaid. In the event of any dispute conversion of this Warrant, certificates for the shares of stock so converted shall be delivered to the holder hereof within 15 days thereafter and, unless this Warrant has been fully converted or discrepancyexpired, a new Warrant representing the records portion of the Holder shares, if any, with respect to which this Warrant shall be controlling and determinative in not then have been converted, shall also bc issued to the absence of manifest errorholder hereof within such 15 day period.
Appears in 1 contract
Conversion. (Aa) This Debenture Such Purchaser covenants that, until the NYSE Shareholder Approval (as defined below) is obtained, it shall be convertible into shares of Common Stock at not exercise its right to convert the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject Notes issued pursuant hereto to the limitations on conversion set forth in Section 4(a)(ii) hereof). The extent that the aggregate number of shares of Common Stock that would be issuable by the Company 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 (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 were to pay the interest due on a Conversion Date in cash pursuant elect to the terms hereofsettle such conversion solely by delivering shares of Common Stock, subsection (ii) shall not be used in the calculation of together with the number of shares of Common Stock issuable issued by the Company upon a conversion hereunderof the Notes issued pursuant hereto concurrently with or prior to such conversion, would exceed 16,373,633 shares of Common Stock (such number to be adjusted from time to time for stock dividends, stock splits or stock combinations with respect to the Common Stock).
(Bb) Notwithstanding anything Such Purchaser covenants that, until the Authorized Share Availability Date (as defined below) has occurred (including as a result of the receipt of the Authorized Share Approval), it shall not exercise its right to convert the Notes issued pursuant hereto to the contrary contained herein, extent that the aggregate number of shares of Common Stock that would be issuable by the Company upon such conversion if on any Conversion Date:
(1) the Company were to elect to settle such conversion solely by delivering shares of Common Stock would exceed the number of shares of Common Stock at the time that are then authorized, unissued unreserved (for other issuances) 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 outstandingunissued.
(Cc) This Debenture Such Purchaser covenants that it will not transfer the Notes to any person unless such transferee agrees in writing to be bound by the covenants set forth in Sections 3.2(a) and 3.2(b) (any such transferee, a “Successor Purchaser”), whereupon such Successor Person shall be convertible into shares entitled to the benefits of Common Stock at and to enforce the option representations, warranties and covenants 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 Company set forth in Section 4(a)(ii) 2 and Section 4 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: Note Purchase Agreement (Protalix BioTherapeutics, Inc.)
Conversion. (A) This Debenture Each CCBG Share issued and outstanding immediately prior to the Effective Time shall be convertible converted into shares of Common Stock at the option of right to receive the Holderfollowing, 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 terms of this Agreement, including, but not limited to, the deliveries contemplated by Section 4(a)(ii7.03(g):
(i) hereof). The that number of shares of Enterprises Common Stock issuable upon a conversion hereunder shall be determined (valued at the Notional Value) equal in value to: (1) $1,492,540 (the "Closing Adjustment Escrow Amount") multiplied by adding the sum of (i2) the quotient obtained by dividing percentage such CCBG Share represents of all of the CCBG Shares issued and outstanding immediately prior to the Effective Time (x) the outstanding principal amount of this Debenture "Per Share Percentage"), to be converted and (y) delivered to the Conversion Price (as defined herein), and Shareholders' Representative;
(ii) that number of shares of Enterprises Common Stock (valued at the Notional Value) equal in value to: (1) $18,656,748 (the "Claims Escrow Amount") multiplied by (2) the Per Share Percentage, to be delivered to the Shareholders' Representative;
(iii) to the extent cash has been designated in the Cash Election as provided in Section 1.02(c) by the holder of such share being converted, a cash amount equal to: (1) the Estimated Merger Consideration multiplied by the Per Share Percentage, multiplied by (2) the Cash Percentage of such holder (the "Cash Component"), to be delivered to the holder of the share being converted;
(Iiv) that number of shares of Enterprises Common Stock (valued at the Notional Value) equal in value to: (1) the product of (x) the outstanding principal amount of this Debenture Per Share Percentage multiplied by the Remaining Estimated Merger Consideration, to be delivered to the holder of the share being converted and (y) the product of "Stock Component"). The "Remaining Estimated Merger Consideration" is (1) the quotient obtained Estimated Merger Consideration multiplied by dividing .12 by 360 the difference between such holder's Cash Percentage and 100%, less (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 Claims Escrow Amount 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);
less (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 hereunderClosing Adjustment Escrow Amount; 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.and
Appears in 1 contract
Sources: Merger Agreement (Coca Cola Bottling Group Southwest Inc)
Conversion. (Aa) This Debenture Promptly following receipt by each Seller of the notice referred to in Section 4.1(c) hereof, each Seller shall prepare and deliver to the Company and the Transfer Agent a Conversion Notice in connection with the All Cash Sale of the Shares contemplated hereby (the “Conversion Notice”). Each such Conversion Notice shall set forth (i) the aggregate number of Class P Shares being Transferred by such Seller, which shall be convertible into shares equal to the amount set forth beside such Seller’s name in the second column of Common Stock at Annex A; (ii) the option “aggregate Net Sale Proceeds” receivable by such Seller, which shall be equal to the amount set forth beside such Seller’s name in the third column of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date Annex A (subject to the limitations on conversion set forth adjustment contemplated by the second sentence of Section 1.2); and (iii) the “weighted average per share Net Sale Proceeds” in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder connection with the Transfer by such Seller, 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:
(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 amount set forth beside such Seller’s name in the fourth column 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 Annex A (subject to the limitations on conversion set forth in adjustment contemplated by the second sentence of 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"1.2). The Conversion Notice shall also certify that the Transfer being effected in connection with the Conversion Notice will be effected in accordance with an exemption from the registration requirements of the Securities Act applicable to private resales and restricted securities, and shall instruct the Transfer Agent to affix to the certificates being issued in respect of the Shares a legend referenced in Section 3.2(g) hereof.
(b) In the event the Closing is not consummated with respect to the purchase of Shares from a particular Seller within five (5) business days (or such longer period as may be agreed by such Seller and the Company) following Voluntary Conversion of Class A Shares into Class P Shares occurring pursuant to Section D.2(a)(iii) of the Certificate of Incorporation such that the Class P Shares would revert back to Class A Shares as contemplated by the Certificate of Incorporation, (i) the condition 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 in Section 2.2(b)(vi) hereof shall not be required deemed to physically surrender this Debenture have been satisfied with respect to such Seller and (ii) such Seller shall cause a new Conversion Notice, in each case on the terms set forth in Section 4.3(a), to be promptly delivered to the Company in order and the Transfer Agent.
(c) Buyer acknowledges and agrees, with respect to effect conversions. Subject to Section 4(b)the sale of the Shares by each Seller hereunder, each Conversion Notice, once given, (i) that the Transfer by such Seller contemplated by this Agreement shall be irrevocable. Conversions hereunder deemed an All Cash Sale; (ii) that the “aggregate Net Sale Proceeds” (as such term is contemplated by the Certificate of Incorporation) in connection with the Transfer by such Seller pursuant to this Agreement shall be the amount as set forth beside such Seller’s name in the third column of Annex A (subject to the adjustment contemplated by the second sentence of Section 1.2); and (iii) that the “weighted average per share Net Sale Proceeds” (as such term is contemplated by the Certificate of Incorporation) in connection with the Transfer by such Seller pursuant to this Agreement shall be the amount as set forth beside such Seller’s name in the fourth column of Annex A (subject to the adjustment contemplated by the second sentence of Section 1.2).
(d) Capitalized terms used but not defined in this Section 4.3 shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal meanings given to the applicable conversion, which shall be evidenced by notations made such terms in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date Certificate 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 errorIncorporation.
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. (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. At the Effective Time of the Merger:
(Ai) This Debenture shall be convertible into all shares of Common Stock at the option of the HolderCompany, no par value per share, and all shares of Preferred Stock of the Company, no par value per share (collectively, the “Company Capital Stock”), that are owned directly or indirectly by the Company or any subsidiary of the Company shall be cancelled, and no securities of Parent or other consideration shall be delivered in whole or in part at any time exchange therefor;
(ii) each of the issued and from time to timeoutstanding shares of Parent shall remain outstanding as one validly issued, after fully paid and nonassessable share of the Original Issue Date capital stock of Parent;
(subject to the limitations on conversion set forth in Section 4(a)(iiiii) hereof). The number of shares each share of Common Stock issuable upon a conversion hereunder shall be determined of the Company issued and outstanding immediately prior to the Effective Time (the “Company Common Stock”) (other than shares, if any, held by adding persons who have demanded and perfected dissenters’ rights for such shares in accordance with the sum Corporations Code of the State of California and who, as of the Effective Time, have not effectively withdrawn or lost such dissenters’ rights, referred to hereinafter as “Dissenting Shares”, and those shares being cancelled pursuant to clause (i) the quotient obtained by dividing (xabove) the outstanding principal amount of this Debenture to shall be converted and (y) automatically into the Conversion Price (as defined herein)right to receive, and (ii) the receive amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted Aggregate Cash Amount 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 outstandingCommon Cash Percentage, 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 Company Common Stock issuable upon that are issued and outstanding on a conversion hereunder.
(B) Notwithstanding anything fully exercised, fully converted basis immediately prior 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 StockEffective Time;
(2iv) each share of Series A Preferred Stock of the Underlying Shares issuable for such conversion Company issued and outstanding immediately prior to the Effective Time (including any interest payable in sharesthe “Series A Preferred Stock”) (x) are not registered for resale other than Dissenting Shares and shares being cancelled pursuant to an effective Underlying Shares Registration Statement and clause (yi) may not be sold without volume restrictions pursuant to Rule 144(kabove) 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 shall be converted on such Conversion Date and (b) automatically into 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 right 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 receive 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 cash amount equal to the applicable conversion, which Series A Cash Amount and a fraction of a share of Parent Common Stock equal to the Series A Exchange Ratio;
(v) each share of Series B Preferred Stock of the Company issued and outstanding immediately prior to the Effective Time (the “Series B Preferred Stock”) (other than Dissenting Shares and shares being cancelled pursuant to clause (i) above) shall be evidenced by notations made in converted automatically into the Conversion Notice. The Holder right to receive a cash amount equal to the Series B Cash Amount and a fraction of a share of Parent Common Stock equal to the Series B Exchange Ratio;
(vi) each share of Series C Preferred Stock of the Company issued and outstanding immediately prior to the Effective Time (the “Series C Preferred Stock”) (other than Dissenting Shares and shares being cancelled pursuant to clause (i) above) shall maintain records showing be converted automatically into the principal right to receive a cash amount converted equal to the Series C Cash Amount and a fraction of a share of Parent Common Stock equal to the date Series C Exchange Ratio;
(vii) each share of such conversions. In the event of any dispute or discrepancy, the records Series D Preferred Stock of the Holder Company issued and outstanding immediately prior to the Effective Time (the “Series D Preferred Stock”) (other than Dissenting Shares and shares being cancelled pursuant to clause (i) above) shall be controlling converted automatically into the right to receive a cash amount equal to the Series D Cash Amount and determinative in a fraction of a share of Parent Common Stock equal to the absence Series D Exchange Ratio;
(viii) each share of manifest errorSeries E Preferred Stock of the Company issued and outstanding immediately prior to the Effective Time (the “Series E Preferred Stock”) (other than Dissenting Shares and shares being cancelled pursuant to clause (i) above) shall be converted automatically into the right to receive a cash amount equal to the Series E Cash Amount and a fraction of a share of Parent Common Stock equal to the Series E Exchange Ratio;
(ix) each share of Series F Preferred Stock of the Company issued and outstanding immediately prior to the Effective Time (the “Series F Preferred Stock”) (other than Dissenting Shares and shares being cancelled pursuant to clause (i) above) shall be converted automatically into the right to receive a cash amount equal to the Series F Cash Amount and a fraction of a share of Parent Common Stock equal to the Series F Exchange Ratio; and
(x) each share of Series G Preferred Stock of the Company issued and outstanding immediately prior to the Effective Time (the “Series G Preferred Stock”) (other than Dissenting Shares and shares being cancelled pursuant to clause (i) above) shall be converted automatically into the right to receive a cash amount equal to the Series G Cash Amount and a fraction of a share of Parent Common Stock equal to the Series G Exchange Ratio; provided, that a portion of the shares of Parent Common Stock issuable pursuant to the foregoing clauses (iii) through (x) shall be deposited into escrow and shall be subject to the provisions of the Reorganization Agreement relating to the disposition of the Escrow Fund.
Appears in 1 contract
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 The Borrower shall be convertible into shares of Common Stock at have 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 convert (i) at any time, all or a portion of any Base Rate (US) Loan into a Libor Loan, (ii) [intentionally deleted], (iii) on the quotient obtained by dividing last day of an Interest Period applicable thereto, a Libor Loan into a Base Rate (US) Loan or (iv) [intentionally deleted]; provided, however, (x) without the consent of the Agent or the Required Banks, no portion of the outstanding principal amount of this Debenture to any Base Rate (US) Loan may be converted into a Libor Loan during the continuance of any Default or Event of Default and (y) no Loan may be converted under this Section 3.5(a) unless the provisions of the next-to-last sentence of Section 2.2(b) are complied with after giving effect to such conversion.
(b) The Borrower shall exercise the option granted pursuant to Section 3.5(a) by giving, no later than 10:00 a.m., Closing Office Time, on the fourth Business Day prior to the proposed conversion date, written or telephonic notice (confirmed in writing) thereof (a "Notice of Conversion") to the Agent (the details of which notice the Agent shall promptly deliver in writing, or by telephone, promptly confirmed in writing to each Bank). Each Notice of Conversion Price shall state (as defined hereini) the option to be exercised pursuant to Section 3.5(a), the requested conversion date which shall be a Business Day and which in the case of the conversion of any Base Rate (US) Loan shall be deemed the last day of the Interest Period applicable thereto 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 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 into 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), thenLibor Loan, the Company may not pay interest in kind requested Interest Period therefor. Unless otherwise agreed to by the Agent and must pay interest in cash by deliveringthe Borrower, within three Trading Days the Notice 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 of Exhibit C hereto.
(c) Any Libor Loan may be continued as Exhibit A (a "Conversion Notice"). The Conversion such upon the expiration of the then current Interest Period with respect thereto by the Borrower giving an Interest Period Notice shall set to the Agent, in accordance with Section 3.4, setting forth the remaining principal amount length of this Debenture the next Interest Period to be applicable to such Loan, provided that no Libor Loan may be continued as such (i) when any Default or Event of Default has occurred and all accrued is continuing and unpaid interest thereon subsequent the Agent or the Required Banks have determined that such a continuation is not appropriate, (ii) if, after giving effect thereto, Section 2.2(b) would be contravened or (iii) after the date that is one month prior to the conversion at issue. The date on which a Conversion Notice is delivered is end of the "Conversion Date." Unless Commitment period (in the Holder is converting the entire principal amount outstanding under this Debenturecase of continuations of Revolving Credit Loans) and provided, the Holder further, that if such continuation is not be required to physically surrender this Debenture permitted pursuant to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, preceding proviso such Loans shall be irrevocable. Conversions hereunder shall have automatically converted to Base Rate (US) Loans 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 last day 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 errorthen expiring Interest Period.
Appears in 1 contract
Sources: Loan Agreement (Xanser 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 (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. (Aa) This Debenture Conversion Upon Closing of a Qualified Financing. If the Company shall consummate an equity financing (or series of related financings) involving the issuance and sale of Series C Convertible Preferred Stock (the rights, preferences and privileges of which are to be convertible designated by the Board of Directors of the Company) (the "Series C Preferred Stock") prior to the Demand Date, yielding aggregate proceeds of at least $12,000,000 (the "Qualified Financing"), then the principal amount of this Note shall automatically and without any action on the part of the Holder be converted into that number of fully paid and nonassessable shares of Common Series C Preferred Stock as are purchasable with the principal amount of this Note (the principal of this Note being treated as if it were cash consideration), on the identical terms and conditions and at the same price as the Series C Preferred Stock is issued and sold in the Qualified Financing
(b) Conversion on or after Demand Date. ----------------------------------
(i) If the Company does not consummate a Qualified Financing before the Demand Date, then, if the Note shall not theretofore have been converted pursuant to Section 2(b)(ii) hereof, the principal amount of this Note shall, at the option of the Holder, in whole or in part exercisable at any time and from time to time, be convertible into that number of fully-paid and nonassessable shares of preferred stock (which may be Series C Preferred Stock issued in a Qualified Financing occurring after the Original Issue Date Demand Date) issued in connection with the first private placement of equity for cash completed by the Company (subject the "Non-Qualified Preferred Stock") on or after the date hereof, 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 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 (iiA) the amount equal to (I) of the product of (x) the then 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, hereof divided by (IIB) the Conversion Price on the Conversion Date, provided, that if price per share at which the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection issued and sold such shares of Non-Qualified Preferred Stock
(ii) shall not be used Anything contained in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
Sections 2(a) or (Bb)(i) Notwithstanding anything to the contrary contained hereinnotwithstanding, 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) does not consummate a Qualified Financing before the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), thenDemand Date, the Company may not pay interest in kind and must pay interest in cash by deliveringprincipal of this Note shall, 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 exercisable at any time and from time to time, after be convertible, in full and not in part, into that number of fully-paid and nonassessable shares of Senior Series B-2 Preferred Stock, $.0005 par value, of the Original Issue Date Company, equal to (subject to A) 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 then 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 hereof divided 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(B) $2.50.
Appears in 1 contract
Conversion. (A1) This Debenture shall be convertible 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 [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 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 ________(2) 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 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 Debenture 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 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 (y) the Conversion Price (any replacement Instrument issued as defined herein), and (ii) the amount equal to (I) the product a result of (x) the outstanding principal amount any partial 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, 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 hereunderInstrument.
(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) Upon surrender of this Instrument for conversion, the Underlying Shares issuable for such conversion (including any interest payable holder will be entitled to payment 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);
cash 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 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 Business Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount thereafter of the Debentures to be converted interest accrued 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.the
Appears in 1 contract
Sources: Asset Purchase Agreement (Tekelec)
Conversion. (A) This Debenture shall be convertible into shares of Common Stock At any time while this Note remains outstanding, at the option of the HolderNoteholder, in whole the Principal Amount of this Note or in part at any time and from time to timeportion thereof, after together with all accrued but unpaid interest on such amount, may be converted into Series A-1 Preferred Units of the Original Issue Date Company (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof“Preferred Units”). The number of Preferred Units that this Note shall be converted into is based upon the conversion price equal to, at the time of conversion, the least of (1) $8.3579, (2) the per-share or per-unit offer price to the public in connection with an underwritten initial public offering (“IPO”) of shares multiplied by 0.80, or if the Company (or its successor) completes a direct listing of Common its securities (together with an IPO, the “IPO Transactions”) on a national securities exchange or marketplace (the “Stock issuable upon a conversion hereunder Exchange”), the average of the closing trading per-share or per unit price of such securities (“Listed Securities”) during the first 5 days of trading multiplied by 0.80, or (3) the per-unit price of any financing transaction in which Preferred Units are sold multiplied by 0.80 (the “Conversion Price”) and shall be determined by adding dividing the sum amount of (i) the quotient obtained by dividing (x) the then-outstanding principal amount of this Debenture the Note that the Noteholder desires to be converted and (y) converted, together with all accrued but unpaid interest on such amount, by the Conversion Price Price, and rounding the result to the nearest whole Preferred Unit (or, if applicable, share of Series A-1 Preferred Stock, as defined hereindescribed below), and (ii) subject to adjustment as provided for in this Section 2. Notwithstanding 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 outstandingforegoing, 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) once the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) consummated the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii)Restructuring, 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 HolderNoteholder, this Note may be converted into shares of the Surviving Company’s Series A-1 Preferred Stock described the Restructure Agreement (the “Series A-1 Preferred Stock”). The Preferred Units or shares of Series A-1 Preferred Stock into which this Note may from time to time convert are defined in whole this Note as the “Conversion Securities.” The Conversion Price shall be equitably adjusted in the event of any dividends or in part distributions, splits, reverse splits, mergers, reorganizations, or other similar actions and recapitalizations taken with respect the Conversion Securities. In the event the Company at any time and or from time to time, time after the Original Issue Date (subject date of this Note shall issue or become obligated to issue Class B Common Units of the Company to the limitations on conversion set forth Noteholder and/or any of its Affiliates, then and in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to each such event 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, Securities shall be irrevocable. Conversions hereunder shall deemed to include an additional number of Class B Common Units that Noteholder would have the effect of lowering the outstanding principal amount of received if 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 Note have been converted and into Series A-1 Preferred Units on the date of such conversionsissuance. Any request by Noteholder to convert all or a portion of this Note must be accompanied by a written notice in a form reasonably acceptable to the Company which states that the Noteholder elects to convert this Note, or a specified portion hereof, and shall also state the name or names (with address or addresses) in which the Conversion Securities shall be issued, it being understood that neither the Preferred Units nor the Series A-1 Preferred Stock are certificated and as such any issuance of Conversion Securities shall be evidenced solely via book entry in the applicable issuer’s unit or stock records, as applicable. In the event of any dispute conversion of this Note in part only, this Note shall be cancelled contemporaneously with such partial conversion and a new note or discrepancynotes for the unconverted portion hereof will be issued in the name of the Noteholder upon the cancellation of this Note. In the event an IPO Transaction is consummated and as long as this Note remains outstanding, the records Company and the Surviving Company shall agree, upon reasonable request by the Noteholder, to amend this Note to include additional provisions for the purpose of complying with certain rules and regulations of the Holder shall be controlling Securities and determinative in Exchange Commission and the absence Stock Exchange, including any “blocker” provisions limiting beneficial ownership of manifest errorListed Securities by the Noteholder upon conversion of the Note.
Appears in 1 contract
Conversion. (A) This Debenture shall be convertible In lieu of exercising this Warrant pursuant to Section 4, the Holder may elect to convert this Warrant, without the payment by the Holder of any additional consideration, into shares of Common Stock at equal to the option value of this Warrant (or the portion thereof being canceled) by surrender of this Warrant to the Secretary of the HolderCompany at its principal office together with notice of such election, in whole or in part at any time and from time to time, after which event the Original Issue Date (subject Company shall issue to the limitations on conversion set forth in Section 4(a)(iiHolder a number of shares of Common Stock computed using the following formula: X = Y (A - B) hereof). Where: X = 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) issued to the Conversion Price (as defined herein), and (ii) the amount equal Holder pursuant 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 conversion; Y = The number of days for Shares in respect of 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 election 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 convert is made; A = The fair market value of one share 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 authorizedthe election to convert is made; B = The Exercise Price. For purposes of this Section 5, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares the fair market value of one share of Common Stock;
Stock as of a particular date shall be: (2a) if applicable, the Underlying Shares issuable for such conversion (including average of the closing bid and asked prices of the Company’s common stock quoted in the over-the-counter market summary or the closing price quoted on 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) exchange on which the Common Stock is not listed or quoted for trading on listed, whichever is applicable, as published in 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 United States Edition of the Debentures Wall Street Journal for the ten (10) trading days immediately prior to be converted on such Conversion Date and but not including the date of determination of fair market value, (b) if the product conversion pursuant to this Section 5 is immediately prior to the closing of an acquisition of the Company (xas described Section 3(c) above), then the quotient obtained by dividing .12 by 360 and (y) price per share of the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at in such transaction, or (c) if 5(a) and 5(b) hereof are not applicable or if the option of price in 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 transaction set forth in Section 4(a)(ii5(b) hereof). The is not in cash, then as determined in good faith by the Company’s board of directors; provided that if Holder objects to such determination, then the value shall effect conversions be determined by delivering an appraiser chosen by the Board of Directors who is reasonably acceptable to Holder, and the cost of such appraisal shall be borne equally by 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 errorHolder.
Appears in 1 contract
Conversion. (Ai) This Debenture shall be convertible into shares of Common Stock (subject to the limitations set forth in Section 4(a)(ii) hereof) at the option of the Holder, in whole or in part at any time and from time to time, after time following the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof)Date. 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 converted, plus all accrued but unpaid interest thereon (y) 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, extent that if the Company shall have timely has 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 permitted 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), thenby the Conversion Price, 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 (as subject to the limitations on conversion set forth in Section 4(a)(ii) hereof)adjustment as provided hereunder. 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 "). If no Conversion Date is specified in a Conversion Notice, the Conversion Date shall be the date that such Conversion Notice is deemed delivered hereunder. If the Holder is converting less than all of the entire principal amount outstanding under this Debenturerepresented by the Debenture(s) tendered by the Holder with the Conversion Notice, or if a conversion hereunder cannot be effected in full for any reason, the Holder is not be required to physically surrender this Debenture Company shall honor such conversion to the Company extent permissible hereunder and shall promptly deliver to such Holder (in order to effect conversions. Subject to the manner and within the time set forth in Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding ) a new Debenture for such 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 has not been converted.
Appears in 1 contract
Conversion. As a condition precedent to the Investors agreement to execute and deliver this Agreement and consummate the transactions contemplated hereby, the Company has taken all actions necessary to reduce the Conversion Price (Aas defined in the Certificate of Designations) This Debenture shall to $4.62272877 per share. Each of the following actions are being taken substantially contemporaneously with the execution of this Agreement and will be convertible deemed to have been taken concurrently at the consummation of the transactions contemplated hereby (but subsequent to the reduction of the Conversion Price (as defined in the Certificate of Designations) referred to in the first sentence of this Section 2):
(a) The Investors are converting all of the issued and outstanding shares of Series D Preferred Stock held by them into 11,100,878 shares of Common Stock at (together with the option of Rights (as defined in the HolderRights Plan) associated therewith), 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)aggregate. The number of shares of Common Series D Preferred Stock issuable upon a conversion hereunder shall be determined being converted by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture each Investor are set forth next to be converted and (y) the Conversion Price (as defined hereinsuch Investor's name on Schedule 2(a), 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 each Investor 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 receive the number of shares of Common Stock issuable upon a conversion hereunderset forth beside such Investor's name on Schedule 2(a) attached hereto (together with the Rights (as defined in the Rights Plan) associated therewith).
(Bb) Notwithstanding anything Each Investor is delivering to the contrary contained herein, if on any Conversion Date:Company duly endorsed certificates of all of the outstanding Series D Preferred Stock held by such Investor.
(1c) The Company is issuing to each Investor certificates representing the number of shares of Common Stock at set forth beside such Investor's name on Schedule 2(a) attached hereto.
(d) The Company is filing a Certificate of Elimination of the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in Certificate of Designations with the Delaware Secretary of State eliminating the shares of Common Stock;Series D Preferred Stock received from the Investors pursuant to Section 2(b) above.
(2e) Each of the Underlying Shares issuable for such conversion (including any interest payable Investors and the Company are executing and delivering to each other an Investor Rights Agreement, in shares) (x) are not registered for resale pursuant a form acceptable to an effective Underlying Shares Registration Statement each of them, setting forth certain terms and (y) may not be sold without volume restrictions pursuant conditions with respect to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) Investors' ownership of the Common Stock is not listed or quoted for trading on being issued pursuant hereto. The parties hereto agree that each 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)issued pursuant to this Agreement shall be deemed (i) "Registrable Securities" as defined in, thenand for the purposes of, 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 Registration Rights Agreement and (bii) "Company Shares" as defined in, and for 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 Debenturepurposes of, 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 errorStandstill Agreement.
Appears in 1 contract
Sources: Conversion Agreement (Tc Group LLC)
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. (Aa) This Debenture shall be convertible into shares The parties acknowledge that the FRB may issue a Conversion Order pursuant to 12 C.F.R. 252.163 that would result in the conversion of Common Stock at the option of the Holderany then outstanding Term Loans, in whole or in part at any time and from time part, to timeequity.
(b) If a Conversion Order is issued by the FRB with respect to the Borrower, after the Original Issue Date (then an Automatic Conversion with respect to each Term Loan shall occur immediately, subject to the limitations terms of this Section 6 (such date, the “Conversion Date”).
(c) Effective upon, and following, the Conversion Date, the Lender shall have no right to receive payment of the principal of and interest (including any accrued and unpaid interest) on conversion set forth in Section 4(a)(iithe Converted Amount, or to institute suit for the enforcement of any such payment.
(d) hereof)Effective upon, and following, the Conversion Date, the principal amount of each Term Loan shall be reduced by the Converted Amount. Any amount of accrued and unpaid interest on the Converted Amount shall be reduced to zero.
(e) The number of shares Conversion Shares to be issued to the Lender on the Conversion Date in respect of Common Stock issuable upon a conversion hereunder Term Loan shall be determined by adding equal the sum of lesser of:
(i) the quotient obtained of the Converted Amount with respect to such Term Loan divided by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein)Price, and rounded down, if necessary, to the nearest whole number of Conversion 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) 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 of the outstanding principal amount of such Term Loan divided by dividing .12 by 360 the amount of Total Internal TLAC and (y) the total number of days authorized but unissued Common Stock available for which such principal amount was outstandingissue free from preemptive or other preferential rights. Fractions of Conversion Shares shall not be issued following an Automatic Conversion and no cash payment shall be made in lieu thereof.
(Cf) This Debenture If the number of Conversion Shares issued by the Borrower to the Lender on the Conversion Date is determined pursuant to Section 6(e)(ii), the Borrower shall be convertible into use its best efforts to have shareholders of the Borrower authorize the issuance of a number of additional 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“Additional Conversion Shares”) 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 conversiondifference between the number of Conversion Shares produced by the equation in Section 6(e)(i) and the number of Conversion Shares produced by the equation in Section 6(e)(ii) and shall issue such Additional Conversion Shares to the Lender as soon as reasonably practicable.
(g) Notwithstanding anything herein to the contrary, which the Conversion Price may be adjusted by mutual agreement of the parties.
(h) Solely for purposes of calculating the Converted Amount and the number of Conversion Shares pursuant to this Section 6, if any Term Loan is issued in a currency other than USD, amounts in respect of the Term Loan in such currency shall be evidenced determined by notations made in conversion into USD at the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and prevailing spot rate as of 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 errorConversion Order.
Appears in 1 contract
Sources: Master Internal Total Loss Absorbing Capacity Loan Agreement (MUFG Americas Holdings 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 (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. (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. Subject to Sections 1.9, 1.10 and 1.11, at the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the Company, any stockholder of the Company or any other Person:
(i) each share of Company Capital Stock held in the Company’s treasury, owned by the Company or any direct or indirect wholly-owned Subsidiary of the Company or owned by Parent, Merger Sub or any subsidiary of Parent immediately prior to the Effective Time (each, a “Disregarded Share”), if any, shall be canceled without payment of any consideration with respect thereto;
(ii) each share of Series A Preferred Stock that is not a Disregarded Share issued and outstanding immediately prior to the Effective Time shall be converted automatically into the right to receive (in each case of the foregoing clauses (1) through (5), as such portions are set forth in the Merger Consideration Spreadsheet):
(1) an amount in cash equal to: (A) This Debenture shall be convertible into shares of Common Stock at the option applicable portion of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date Aggregate Upfront Cash Consideration; minus (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 (iB) the quotient obtained by dividing (x) applicable portion of 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 Expense Fund Amount; plus
(2) the number of days for which such principal amount was outstanding, divided by a certificate or book entry reflecting (IIA) the Conversion Price on applicable portion of the Conversion DateUpfront Stock Consideration minus (B) the applicable portion of the Indemnity Holdback Shares; plus
(3) a contingent right to receive the applicable portion of the Milestone Payment in accordance with the terms of Section 1.7, provided, that if the Company shall have timely elected as and when such payments is required to pay the interest due on a Conversion Date in cash be made pursuant to the terms hereof; plus
(4) a contingent right to receive any cash disbursements required to be made from the Expense Fund with respect to such share of Series A Preferred Stock to the former holder thereof in accordance with the terms of this Agreement, subsection as and when such disbursements are required to be made pursuant to the terms hereof; plus
(ii5) a contingent right to receive a certificate or book entry reflecting the applicable portion of the Indemnity Holdback Shares that may be required to be issued with respect to such share to the former holder thereof in accordance with the terms of this Agreement, as and when such disbursements are required to be made pursuant to the terms hereof; and
(iii) each share of Series A-1 Preferred Stock that is not a Disregarded Share issued and outstanding immediately prior to the Effective Time shall not be used converted automatically into the right to receive (in each case of the foregoing clauses (1) through (5), as such portions are set forth 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:Merger Consideration Spreadsheet):
(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: (A) the applicable portion of the Aggregate Upfront Cash Consideration; minus (B) the applicable portion of the Expense Fund Amount; plus
(2) a certificate or book entry reflecting (A) the applicable portion of the Upfront Stock Consideration minus (B) the applicable portion of the Indemnity Holdback Shares; plus
(3) a contingent right to receive the applicable portion of the Milestone Payment in accordance with the terms of Section 1.7, as and when such payments is required to be made pursuant to the product terms hereof; plus
(4) a contingent right to receive any cash disbursements required to be made from the Expense Fund with respect to such share of Series A-1 Preferred Stock to the former holder thereof in accordance with the terms of this Agreement, as and when such disbursements are required to be made pursuant to the terms hereof; plus
(a5) a contingent right to receive a certificate or book entry reflecting the outstanding principal amount applicable 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 (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 Indemnity Holdback Shares that may be required to physically surrender this Debenture be issued with respect to such share to the former holder thereof in accordance with the terms of this Agreement, as and when such disbursements are required to be made pursuant to the terms hereof;
(iv) each share of Company in order Common Stock that is issued and outstanding immediately prior to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, the Effective Time shall be irrevocable. Conversions hereunder cancelled and shall not have the effect right to receive any portion of lowering the Merger Consideration; and
(v) each share of common stock, par value $0.0001 per share, of Merger Sub issued and outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal immediately prior to the applicable conversion, which Effective Time shall be evidenced by notations made in the Conversion Notice. The Holder converted into and the Company shall maintain records showing the principal amount converted become one newly issued, fully paid, and the date non-assessable share of such conversions. In the event of any dispute or discrepancycommon stock, the records par value $0.0001 per share, of the Holder shall be controlling and determinative in the absence of manifest errorSurviving Company.
Appears in 1 contract
Conversion. Holders of shares of Series C 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 C Preferred Stock shall have the right, at his, her or its option, at any time after the eighteen month 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 C Preferred Stock may be converted, at the request of its holder, in part into Common Stock. If a part of a share of Series C 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 C Preferred Stock evidencing the remaining interest of such holder.
(b) In order to exercise the conversion right, the holder of each share of Series C 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 C 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 C 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 C 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 C 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 C 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 C 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 C 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 C 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 C 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 C 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 C 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 C 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 as a class 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 C 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 C Preferred Stock upon the conversion of the shares of Series C Preferred Stock so that any such holder converting shares of Series C 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 C 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 C 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 divide
Appears in 1 contract
Conversion. Subject to the terms and conditions of this Agreement, at the Closing, the remaining 171,613 shares of Preferred Stock collectively owned by the Sellers (Athe “Conversion Shares” and, together with the Purchased Shares, the “Preferred Shares”) This Debenture shall will be convertible irrevocably converted into an aggregate amount of 3,458,360 shares (the “Underlying Shares”) of Common Stock, with each Seller to receive the amount of Underlying Shares set forth next to the Seller’s name in the Schedule of Sellers (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction relating to the Common Stock occurring after the date hereof). In accordance with the Certificate of Designation of the Preferred Stock, no fractional shares of Common Stock at will be issued upon the option of Conversion, and the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject Company will instead deliver cash payments to the limitations on conversion Sellers representing fractional shares in the amounts set forth next to each Seller’s name in Section 4(a)(ii) hereof)the Schedule of Sellers. The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of parties acknowledge and agree that (i) the quotient obtained by dividing (xSellers’ obligations pursuant to Section 6(c) of the outstanding principal amount Certificate of this Debenture to be converted and (y) Designation of the Conversion Price (as defined herein)Preferred Stock have been satisfied, and (ii) the amount equal to (I) Conversion Date for purposes of the product Certificate of (x) Designation of the outstanding principal amount Preferred Stock is the date of this Debenture Agreement, (iii) pursuant to the Certificate of Designation of the Preferred Stock, upon the Conversion, no further amounts shall be converted payable in respect of the Conversion Shares except for the right to receive the cash payments in lieu of fractional shares otherwise issuable upon the Conversion as described above, and (yiv) for the product avoidance of doubt, in accordance with the Certificate of Designation of the Preferred Stock, all accrued and unpaid Dividends (1as defined in the Certificate of Designation of the Preferred Stock) 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 Shares through the Company shall have timely elected to pay the interest due on a Conversion Closing Date in cash pursuant to the terms hereof, subsection (iias defined below) shall not be used included 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 Amount (as defined in Section 6the Certificate of Designation of the Preferred Stock);
, including, without limitation, the Participating Dividends (3as defined in the Certificate of Designation of the Preferred Stock) with respect to the quarterly dividend of $0.225 per Underlying Share (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction relating to 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, occurring after the Original Issue Date (subject date hereof) declared by the Company’s Board of Directors to the limitations stockholders of record as of May 11, 2021 and that otherwise would have been payable 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 Dateor about May 21, 2021." 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: Share Repurchase Agreement (Papa Johns International 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. (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. (A) This Debenture shall be convertible into shares of Common Stock at Effective upon the option consummation of the HolderAMT Investment, (a) Working Capital Borrowings 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 an aggregate principal amount of this Debenture to $7,000,000 shall be automatically 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 into Term Borrowings 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 Working Capital Commitments 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 ratably reduced by $7,000,000. Prior 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 discrepancyconversion, the records Borrower shall notify the Agent in writing of the Holder Working Capital Borrowing or Borrowings (or portions thereof) that are to be converted pursuant to the preceding sentence. The conversion of each such Borrowing (or portion thereof) shall be controlling allocated ratably to the Loans included in such Borrowing. If the aggregate principal amount of outstanding Working Capital Loans would be less than $7,000,000 on the date that such conversion is to be made pursuant to the first sentence of this Section, then the Borrower shall borrow additional Working Capital Loans so that there are not less than $7,000,000 in aggregate principal amount of Working Capital Loans outstanding at the time of such conversion. Notwithstanding the foregoing, no such conversion shall become effective until receipt by the Security Agent of an amendment to each mortgage, deed of trust, assignment of leases or similar instrument or document required by law or reasonably requested by the Security Agent (all in form and determinative substance reasonably satisfactory to the Required Banks) to be filed, registered or recorded in order to maintain in favor of the absence Security Agent (or a trustee on its behalf) for the benefit of manifest errorthe Banks a valid, legal and perfected first priority security interest in or lien on the real property (and improvements thereon) owned by the Borrower or any Specified Subsidiary and identified on Schedule 3.01(j) to the Credit Agreement, in each case duly executed and delivered by each mortgagor, grantor or pledgor thereunder.
(c) Section 5.09 of the Credit Agreement is hereby amended by deleting the words "clause (f), (l) or (n)" from the second sentence thereof and substituting the words "clause (f), (l), (n) or (o)".
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. The entire principal amount of this Note and accrued interest on this Note may be converted, in the discretion of the Holder, on not more than sixty (A60) This Debenture shall be convertible into shares of Common Stock nor less than thirty (30) days’ notice to the Company, in whole, at the option of the Holder, in whole or in part Holder either (i) at any time prior to June 30, 2020, into shares of the Company’s Series E Senior Preferred Stock or (ii) into shares of the Company’s equity securities (the “Equity Securities”) issued and sold at the close of the Company’s next equity financing after November 28, 2017 in a single transaction or a series of related transactions yielding gross proceeds to the Company of at least $50,000,000.00 in the aggregate (excluding the value resulting from time the conversion of the Note) (the “Next Equity Financing”) consummated prior to timeJune 30, 2020. Such conversion right with respect to the Next Equity Financing shall expire if not exercised by the earlier of (x) the date that is three (3) months after the Original Issue Date closing of the Next Equity Financing, or (subject to the limitations on conversion set forth in Section 4(a)(iiy) hereof)June 30, 2020. The number of shares of Common Stock issuable Equity Securities to be issued upon a any such conversion hereunder shall be determined by adding the sum of (i) equal to the quotient obtained by dividing (x1) the outstanding entire 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 Note plus accrued interest by dividing .12 by 360 and (2) 100% of the number price per share of days for which such principal amount was outstandingthe Equity Securities issued in the Next Equity Financing, divided by (II) or, in the Conversion Price on case of the Conversion DateSeries E Senior Preferred Stock, providedat the then applicable conversion price per share provided in the Company’s Amended and Restated Certificate of Incorporation, that if the Company shall have timely elected to pay the interest due on a Conversion Date as amended, in cash pursuant each case, rounded to the terms hereofnearest whole share, 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 Equity Securities or Series E Senior 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, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on upon 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 conversion shall be convertible into shares of Common Stock at upon the option of the Holder, in whole or in part at any time terms and from time to time, after the Original Issue Date (subject to the limitations on conditions applicable to the Next Equity Financing, or, in the case of the Series E Senior Preferred Stock, in the Company’s Amended and Restated Certificate of Incorporation. Upon such conversion set forth in Section 4(a)(ii) hereof). The of this Note with respect to the Next Equity Financing, the Holder shall effect conversions by delivering hereby agrees to execute and deliver to the Company all transaction documents related to the Next Equity Financing, including a completed notice substantially purchase agreement and other ancillary agreements, with customary representations and warranties and transfer restrictions (including a lock-up agreement in connection with an initial public offering), and having terms and conditions not less favorable to the Holder than those contained in the form attached hereto agreements as Exhibit A (a "Conversion Notice")may be entered into by the other purchasers of the Equity Securities in the Next Equity Financing. The Conversion Notice This Note shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent cease 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 be convertible under this Debenture, Section 3 upon 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 occurrence 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 a “Qualified Public Offering” as defined in the Conversion Notice. The Holder Amended and the Company shall maintain records showing the principal amount converted and the date Restated Certificate of such conversions. In the event of any dispute or discrepancyIncorporation, the records as amended, of the Holder shall be controlling and determinative in the absence of manifest errorCompany.
Appears in 1 contract
Sources: Convertible Promissory Note (New Beginnings Acquisition Corp.)
Conversion. (A) This Debenture shall be convertible into shares of Common Stock at 1.1 On the option basis of the Holder, in whole or in part at any time representations and from time to time, after the Original Issue Date (warranties and subject to the limitations on conversion terms and conditions set forth herein, Chrysler Enterprises Ltd. (the "Investor") hereby irrevocably converts the loan amount of US$500,000 (the “Loan Amount”), loaned by the Investor to the Company pursuant to the Loan Agreement between the Investor and the Company dated September 2, 2009 (the “Loan Agreement”), into 1,000,000 units (the "Units") at a price per Unit of US$0.50 (such conversion of the Loan Amount into Units being the "Conversion").
1.2 Each Unit will consist of: (i) one share in Section 4(a)(iithe common stock of the Company (each, a "Share"); (ii) hereofone non-transferable common stock purchase warrant (each, an "A Warrant") entitling the holder thereof to purchase one Share (each, a "Warrant A Share"), as presently constituted, for a period of two years commencing on the Effective Date, at a price per Warrant A Share of US$0.60; and (iii) one non-transferable common stock purchase warrant (each, a "B Warrant" and, together with the A Warrants, the "Warrants") entitling the holder thereof to purchase one Share (each, a "Warrant B Share" and, together with the Warrant A Shares, the "Warrant Shares"), as presently constituted, for a period of two years commencing on the Effective Date, at a price per Warrant B Share of US$0.70. Certificate(s) representing the A Warrants will be in the form attached as Exhibit "A" hereto and certificate(s) representing the B Warrants will be in the form attached as Exhibit "B" hereto. The number Shares, Warrants and the Warrant Shares are collectively referred to as the "Securities".
1.3 On the basis of shares the representations and warranties and subject to the terms and conditions set forth herein, the Company hereby irrevocably agrees to the conversion of Common Stock issuable the Loan Amount into the Units.
1.4 Investor agrees that upon a the conversion hereunder shall be determined by adding of the sum Loan Amount into Units pursuant to the terms of this Agreement (i) the quotient obtained by dividing (x) the outstanding principal amount Loan Agreement shall be null and void and of this Debenture to be converted and (y) the Conversion Price (as defined herein)no further effect, 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 outstandingLoan Amount, 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 giveninterest, shall be irrevocable. Conversions hereunder shall considered 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.
Appears in 1 contract
Conversion. (a) Prior to the Maturity Date, the then outstanding unpaid principal amount of the Loan (including any accrued and unpaid interest as of such date) shall convert into Equity Securities of the Surviving Corporation at the applicable Conversion Price (a “Conversion”) as follows:
(i) in respect of any outstanding unpaid principal amount of the Loan (including any accrued and unpaid interest thereon) owned by Ares:
(A) This Debenture in the case of the Initial Term Loan and Delayed Draw Term Loan (and not, for the avoidance of doubt, the Converted SAFE Term Loan), automatically immediately prior to the consummation of a Business Combination;
(B) in the case of the Converted SAFE Term Loan and 2025-2 Delayed Draw Term Loan, upon the election of Ares in its sole discretion (which such election shall be convertible into shares made by written notice to the Borrower at least five (5) Business Days prior to the consummation of Common Stock at a Business Combination), immediately prior to the option consummation of a Business Combination; or
(C) upon the Holderelection of Ares in its sole discretion, in whole immediately prior to or in part at any time following the consummation of a Qualified IPO;
(ii) in respect of any outstanding unpaid principal amount of the Loan (including any accrued and from time to timeunpaid interest thereon) owned by any Person other than Ares, after the Original Issue Date (subject automatically immediately prior to the limitations on conversion set forth consummation of a Business Combination or a Qualified IPO.
(b) Notwithstanding the foregoing, if the Surviving Corporation is not the Borrower, in connection with any Conversion pursuant to Section 4(a)(ii) hereof16(a). 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 Loan (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 as of such date) will automatically convert into Equity Securities of the Borrower or any successor-in-interest of Borrower, and then (ii) such Equity Securities of the Borrower or successor in interest of the Borrower shall be exchanged into equivalent Equity Securities or Warrants of the Surviving Corporation in connection with such Business Combination or Qualified IPO. The number and type of Equity Securities of the Borrower initially received by Lender in accordance with the foregoing shall be a number and amount such that, upon consummation of the Qualified IPO or Business Combination, Lender receives a number of Equity Securities or Warrants of the Surviving Corporation equal to the conversion at issue. The date on which a Conversion Notice is delivered is number that Lender would have received had 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 Loan (including any accrued and unpaid interest thereon as of such date), been converted directly into Equity Securities or Warrants of the Surviving Corporation at the then-applicable Conversion Price. If the Conversion Price is adjusted in an amount equal to accordance with clause (c)(i) or (c)(ii) of the definition of Conversion Price, the type of Equity Securities a Lender receives in accordance with this Section 16.1 shall be the same as are issued in 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 errorPIPE Transaction.
Appears in 1 contract
Sources: Second Lien Loan and Security Agreement (Kodiak Robotics, Inc.)