Adjustment for Sale of Common Stock Below Current Market Value. If, after the date hereof, the Company sells any Common Stock or any securities convertible into or exchangeable or exercisable for the Common Stock (other than (1) Contingent Warrants, (2) pursuant to the exercise of the Warrants, any Common Stock or any security convertible into, or exchangeable or exercisable for, the Common Stock as to which the issuance thereof has previously been the subject of any required adjustment pursuant to this Article V, (3) the issuance of Common Stock upon the conversion, exchange or exercise of convertible, exchangeable or exercisable securities of the Company outstanding on the date of this Agreement, including the Warrants and Contingent Warrants issued pursuant to the Indenture (to the extent in accordance with the terms of such securities as in effect on the date of this Agreement), (4) any equity securities issued in connection with an underwritten public offering at a price which a nationally -recognized managing underwriter determines to equal the fair market value of such securities, (5) Common Stock or options, warrants or other Common Stock purchase rights, or the Common Stock issued pursuant to such options, warrants or other rights, granted or sold to employees, officers or directors of, or consultants or advisors to, the Company or any subsidiary pursuant to stock purchase, stock option or other plans or arrangements that are approved by the Board of Directors of the Company (collectively, "EMPLOYEE EQUITY ARRANGEMENTS") or (6) equity securities issued in connection with strategic transactions between the Company and one or more other entities (but not including Affiliates (as defined in the Indenture)) that have been approved by the Board of Directors of the Company (collectively, "STRATEGIC TRANSACTIONS"), including (A) joint ventures, manufacturing, marketing or distribution arrangements or (B) technology transfer or development arrangements; PROVIDED, HOWEVER, that this exception shall not be applicable to the extent that the aggregate number of shares of Common Stock issued or issuable pursuant to Employee Equity Arrangements and Strategic Transactions at less than current market value shall exceed 134,755 shares of Common Stock) then, unless the Board of Directors determines in good faith that, taking into account all relevant circumstances, the Company has not sold any such securities for less than the Current Market Value, the Exercise Rate shall be adjusted in accordance with the formula below: E' = E x (O + N) --------------- (O + (N x P/M)) where:
Appears in 1 contract
Samples: Warrant Agreement (Coinstar Inc)
Adjustment for Sale of Common Stock Below Current Market Value. If, after the date hereof, the Company sells any Common Stock or any securities convertible into or exchangeable or exercisable for the Common Stock (other than (1) Contingent Warrants, (2) pursuant to the exercise of the Warrants, any Common Stock or (2) any security convertible into, or exchangeable or exercisable for, the Common Stock as to which the issuance thereof has previously been the subject of any required adjustment pursuant to this Article V, V or (3) the issuance of Common Stock upon the conversion, exchange or exercise of convertible, exchangeable or exercisable securities of the Company outstanding on the date of this Agreement, including the Warrants and Contingent Warrants issued pursuant to the Indenture Agreement (to the extent in accordance with the terms of such securities as in effect on the date of this Agreement), (4) any equity securities issued in connection with an underwritten public offering at a price which a nationally -recognized managing underwriter determines to equal the fair market value of such securities, (5) Common Stock or options, warrants or other Common Stock purchase rights, or the Common Stock issued pursuant to such options, warrants or other rights, granted or sold to employees, officers or directors of, or consultants or advisors to, the Company or any subsidiary pursuant to stock purchase, stock option or other plans or arrangements that are approved by the Board of Directors of the Company (collectively, "EMPLOYEE EQUITY ARRANGEMENTS") or (6) equity securities issued in connection with strategic transactions between the Company and one or more other entities (but not including Affiliates (as defined in the Indenture)) that have been approved by the Board of Directors of the Company (collectively, "STRATEGIC TRANSACTIONS"), including (A) joint ventures, manufacturing, marketing or distribution arrangements or (B) technology transfer or development arrangements; PROVIDED, HOWEVER, that this exception shall not be applicable to the extent that the aggregate number of shares of Common Stock issued or issuable pursuant to Employee Equity Arrangements and Strategic Transactions at less than current market value shall exceed 134,755 shares of Common Stock) then, unless the Board of Directors determines in good faith that, taking into account all relevant circumstances, the Company has not sold any such securities for per share less than the Current Market Value, the Exercise Rate shall be adjusted in accordance with the formula belowformula: E' = E x (O + N) --------------- (O + (N x P/M)) where:: E' = the adjusted Exercise Rate; E = the current Exercise Rate; O = the number of shares of Common Stock outstanding on the date of sale of Common Stock at a price per share less than the Current Market Value to which this paragraph (b) applies; N = the number of shares of Common Stock so sold or the maximum stated number of shares of Common Stock issuable upon the conversion, exchange, or exercise of any such convertible, exchangeable or exercisable securities, as the case may be; P = the offering price per share pursuant to any such convertible, exchangeable or exercisable securities so sold or the sale price of the shares so sold, as the case may be; and M = the Current Market Value as of the Time of Determination or at the time of sale, as the case may be. The adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive the rights, warrants or options to which this paragraph (b) applies or upon consummation of the sale of Common Stock, as the case may be. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants, the Exercise Rate shall be readjusted to the Exercise Rate which would otherwise be in effect had the adjustment made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Exercise Rate shall again be adjusted to be the Exercise Rate which would then be in effect if such date fixed for determination of stockholders entitled to receive such rights or warrants had not been so fixed. No adjustment shall be made under this paragraph (b) if the application of the formula stated above in this paragraph (b) would result in a value of E' that is lower than the value of E.
Appears in 1 contract
Adjustment for Sale of Common Stock Below Current Market Value. If, after the date hereofIssue Date, the Company grants or sells any Common Stock or any securities convertible into or exchangeable or exercisable for the any Common Stock (other than (1) Contingent Warrants, (2) pursuant to the exercise of the Warrants, any Common Stock or (2) pursuant to any security outstanding as of the Issue Date convertible into, or exchangeable or exercisable for, the shares of Common Stock (3) upon the conversion, exchange or exercise of any convertible, exchangeable or exercisable security as to which upon the issuance thereof has previously been the subject of any required an adjustment pursuant to this Article V, V has been made or which did not require any adjustment pursuant to this Article V or (34) the issuance of Common Stock upon the conversion, exchange or exercise of convertible, exchangeable or exercisable securities of the Company outstanding on the date of this Agreement, including the Warrants and Contingent Warrants issued pursuant to the Indenture Issue Date (to the extent in accordance with the terms of such securities as in effect on the date of this Agreementsuch date), (4) any equity securities issued in connection with an underwritten public offering at a price which a nationally -recognized managing underwriter determines to equal below the fair market value of such securities, then Current Market Value (5calculated as set forth in Section 5.01(n) Common Stock or options, warrants or other Common Stock purchase rights, or the Common Stock issued pursuant to such options, warrants or other rights, granted or sold to employees, officers or directors of, or consultants or advisors to, the Company or any subsidiary pursuant to stock purchase, stock option or other plans or arrangements that are approved by the Board of Directors of the Company (collectively, "EMPLOYEE EQUITY ARRANGEMENTS") or (6) equity securities issued in connection with strategic transactions between the Company and one or more other entities (but not including Affiliates (as defined in the Indenture)) that have been approved by the Board of Directors of the Company (collectively, "STRATEGIC TRANSACTIONS"hereof), including (A) joint ventures, manufacturing, marketing or distribution arrangements or (B) technology transfer or development arrangements; PROVIDED, HOWEVER, that this exception shall not be applicable to then the extent that the aggregate number of shares of Common Stock issued or issuable pursuant upon the exercise of each Warrant shall be increased to Employee Equity Arrangements and Strategic Transactions at less than current market value shall exceed 134,755 a number determined by multiplying the number of shares of Common Stock theretofore issuable upon exercise of each Warrant by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately after such sale or issuance plus the number of additional shares of Common Stock offered for subscription or purchase or into or for which such securities that are issued are convertible, exchangeable or exercisable, and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such sale or issuance plus the total number of shares of Common Stock which the aggregate consideration received, upon such sale or grant, or expected to be received by the Company (assuming the exercise or conversion of all such rights, options, warrants or securities, if any), would purchase at the then Current Market Value per share of Common Stock, and the Exercise Price shall be adjusted to a number determined by dividing the Exercise Price immediately prior to such date of issuance by the aforementioned fraction. Such adjustments shall be made whenever such rights, options or warrants or convertible securities are issued. No adjustment shall be made pursuant to this Section 5.01(d) thenwhich shall have the effect of decreasing the number of shares of Common Stock issuable upon exercise of each warrant or of increasing the Exercise Price. For purposes of this Section 5.01(d) only, unless any issuance of Common Stock, or rights, options or warrants to subscribe for, or other securities convertible into or exercisable or exchangeable for, Common Stock, which issuance (or agreement to issue) (A) is in exchange for or otherwise in connection with the Board acquisition of Directors determines the property (excluding any such exchange exclusively for cash) of any Person and (B) is at a price per share equal to the Current Market Value at the time of signing a definitive agreement, shall be deemed to have been made at a price per share equal to the Current Market Value per share at the record date with respect to such issuance or the time of closing or consummation of such exchange or acquisition, if such record date, closing or consummation is within 90 days of the date of such definitive agreement. For the purposes of this subsection (d), the fair market value of any property acquired by the Company shall be determined in good faith that, taking into account all relevant circumstances, by the board of directors of the Company has not sold whose determination shall be evidenced by a board resolution filed with the Warrant Agent, a copy of which will be sent to Holders upon request. No adjustment shall be made under this paragraph (d) for any such securities for less than adjustment which is the Current Market Value, subject of paragraphs (a) and (f) of this Section 5.01. No adjustment in the Exercise Rate shall be adjusted in accordance with made under this paragraph (d) upon the formula below: E' = E x (O + N) --------------- (O + (N x P/M)) where:conversion, exchange or exercise of options to acquire shares of Common Stock by present, future or former officers, directors, employees or consultants of the Company; provided that the exercise price of such options, at the time of issuance thereof, is at least equal to the then Current Market Value of the Common Stock underlying such options.
Appears in 1 contract
Samples: Warrant Agreement (Wireless One Inc)
Adjustment for Sale of Common Stock Below Current Market Value. If, after the date hereof, the Company grants or sells to any Affiliate of the Company (other than a wholly-owned subsidiary) any Common Stock or any securities convertible into or exchangeable or exercisable for the any Common Stock at a price below the then Current Market Value (other than (1) Contingent Warrants, (2) pursuant to the exercise of the Warrants, any Common Stock or (2) pursuant to any security convertible into, or exchangeable or exercisable for, the for shares of Common Stock outstanding as of the date of this Agreement, (3) upon the conversion, exchange or exercise of any convertible, exchangeable or exercisable security as to which upon the issuance thereof has previously been the subject of any required an adjustment pursuant to this Article V, V has been made and (34) the issuance of Common Stock upon the conversion, exchange or exercise of convertible, exchangeable or exercisable securities of the Company outstanding on the date of this Agreement, including the Warrants and Contingent Warrants issued pursuant to the Indenture Agreement (to the extent in accordance with the terms of such securities as in effect on the date of this Agreement), (4) any equity securities issued in connection with an underwritten public offering at a price which a nationally -recognized managing underwriter determines to equal the fair market value of such securities, (5) Common Stock or options, warrants or other Common Stock purchase rights, or the Common Stock issued pursuant to such options, warrants or other rights, granted or sold to employees, officers or directors of, or consultants or advisors to, the Company or any subsidiary pursuant to stock purchase, stock option or other plans or arrangements that are approved by the Board of Directors of the Company (collectively, "EMPLOYEE EQUITY ARRANGEMENTS") or (6) equity securities issued in connection with strategic transactions between the Company and one or more other entities (but not including Affiliates (as defined in the Indenture)) that have been approved by the Board of Directors of the Company (collectively, "STRATEGIC TRANSACTIONS"), including (A) joint ventures, manufacturing, marketing or distribution arrangements or (B) technology transfer or development arrangements; PROVIDED, HOWEVER, that this exception shall not be applicable to the extent that the aggregate number of shares of Common Stock issued or issuable pursuant to Employee Equity Arrangements and Strategic Transactions at less than current market value shall exceed 134,755 shares of Common Stock) then, unless the Board of Directors determines in good faith that, taking into account all relevant circumstances, the Company has not sold any such securities for less than the Current Market Value, the Exercise Rate for each Warrant then outstanding shall be adjusted in accordance with the formula belowformula: E' = E x (O + N) --------------- (O + (N x P/M)) where:: E' = the adjusted Exercise Rate for such class of Common Stock; E = the then current Exercise Rate for such class of Common Stock; O = the number of shares of such class of Common Stock outstanding on a fully diluted basis immediately prior to the sale of Common Stock or issuance of securities convertible, exchangeable or exercisable for Common Stock; N = the number of shares of such class of Common Stock so sold or the maximum stated number of shares of Common Stock issuable upon the conversion, exchange or exercise of any such convertible, exchangeable or exercisable securities, as the case may be; P = the proceeds per share of Common Stock received by the Company, which (i) in the case of shares of Common Stock is the amount received by the Company in consideration for the sale and issuance of such shares; and (ii) in the case of securities convertible into or exchangeable or exercisable for shares of Common Stock is the amount received by the Company in consideration for the sale and issuance of such convertible or exchangeable or exercisable securities, plus the minimum aggregate amount of additional consideration, other than the surrender of such convertible or exchangeable securities, payable to the Company upon exercise, conversion or exchange thereof; and M = the Current Market Value as of the Time of Determination or at the time of sale, as the case may be. The adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive the rights, warrants or options to which this paragraph (b) applies or upon consummation of the sale of Common Stock, as the case may be. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants, the Exercise Rate for each Warrant then outstanding shall be readjusted to the Exercise Rate which would otherwise be in effect had the adjustment made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Exercise Rate for each Warrant then outstanding shall again be adjusted to be the Exercise Rate which would then be in effect if such date fixed for determination of stockholders entitled to receive such rights or warrants had not been so fixed. No adjustment shall be made under this paragraph (b) if the application of the formula stated above in this paragraph (b) would result in a value of E' that is lower than the value of E. No adjustment in the Exercise Rate shall be made under this paragraph (b) upon the conversion, exchange or exercise of options to acquire shares of Common Stock by officers, directors, employees or consultants of the Company; provided that the exercise price of such options, at the time of issuance thereof, is at least equal to the then Current Market Value of the Common Stock underlying such options.
Appears in 1 contract
Adjustment for Sale of Common Stock Below Current Market Value. If, after the date hereof, the Company Holdings grants or sells to any Affiliate of Holdings (other than a wholly-owned subsidiary) any Common Stock or any securities convertible into or exchangeable or exercisable for the any Common Stock at a price below the then Current Market Value (other than (1) Contingent Warrants, (2) pursuant to the exercise of the Warrants, any Common Stock or (2) pursuant to any security convertible into, or exchangeable or exercisable for, the for shares of Common Stock outstanding as of the date of this Agreement, (3) upon the conversion, exchange or exercise of any convertible, exchangeable or exercisable security as to which upon the issuance thereof has previously been the subject of any required an adjustment pursuant to this Article V, V has been made and (34) the issuance of Common Stock upon the conversion, exchange or exercise of convertible, exchangeable or exercisable securities of the Company Holdings outstanding on the date of this Agreement, including the Warrants and Contingent Warrants issued pursuant to the Indenture Agreement (to the extent in accordance with the terms of such securities as in effect on the date of this Agreement), (4) any equity securities issued in connection with an underwritten public offering at a price which a nationally -recognized managing underwriter determines to equal the fair market value of such securities, (5) Common Stock or options, warrants or other Common Stock purchase rights, or the Common Stock issued pursuant to such options, warrants or other rights, granted or sold to employees, officers or directors of, or consultants or advisors to, the Company or any subsidiary pursuant to stock purchase, stock option or other plans or arrangements that are approved by the Board of Directors of the Company (collectively, "EMPLOYEE EQUITY ARRANGEMENTS") or (6) equity securities issued in connection with strategic transactions between the Company and one or more other entities (but not including Affiliates (as defined in the Indenture)) that have been approved by the Board of Directors of the Company (collectively, "STRATEGIC TRANSACTIONS"), including (A) joint ventures, manufacturing, marketing or distribution arrangements or (B) technology transfer or development arrangements; PROVIDED, HOWEVER, that this exception shall not be applicable to the extent that the aggregate number of shares of Common Stock issued or issuable pursuant to Employee Equity Arrangements and Strategic Transactions at less than current market value shall exceed 134,755 shares of Common Stock) then, unless the Board of Directors determines in good faith that, taking into account all relevant circumstances, the Company has not sold any such securities for less than the Current Market Value, the Exercise Rate for each Warrant then outstanding shall be adjusted in accordance with the formula belowformula: E' = E x (O + N) --------------- ------------------- (O + (N x P/M)) where:: E' = the adjusted Exercise Rate for such class of Common Stock; E = the then current Exercise Rate for such class of Common Stock; O = the number of shares of such class of Common Stock outstanding on a fully diluted basis (disregarding for this purpose the convertibility of shares of Class L Common Stock into Class A Common Stock) immediately prior to the sale of Common Stock or issuance of securities convertible, exchangeable or exercisable for Common Stock; N = the number of shares of such class of Common Stock so sold or the maximum stated number of shares of Common Stock issuable upon the conversion, exchange or exercise of any such convertible, exchangeable or exercisable securities, as the case may be (disregarding for this purpose the convertibility of shares of Class L Common Stock into Class A Common Stock); P = the proceeds per share of Common Stock received by Holdings, which (i) in the case of shares of Common Stock is the amount received by Holdings in consideration for the sale and issuance of such shares; and (ii) in the case of securities convertible into or exchangeable or exercisable for shares of Common Stock is the amount received by Holdings in consideration for the sale and issuance of such convertible or exchangeable or exercisable securities, plus the minimum aggregate amount of additional consideration, other than the surrender of such convertible or exchangeable securities, payable to the Company upon exercise, conversion or exchange thereof; and M = the Current Market Value as of the Time of Determination or at the time of sale, as the case may be. The adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive the rights, warrants or options to which this paragraph (b) applies or upon consummation of the sale of Common Stock, as the case may be. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants, the Exercise Rate for each Warrant then outstanding shall be readjusted to the Exercise Rate which would otherwise be in effect had the adjustment made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Exercise Rate for each Warrant then outstanding shall again be adjusted to be the Exercise Rate which would then be in effect if such date fixed for determination of stockholders entitled to receive such rights or warrants had not been so fixed. No adjustment shall be made under this paragraph (b) if the application of the formula stated above in this paragraph (b) would result in a value of E' that is lower than the value of E. No adjustment in the Exercise Rate shall be made under this paragraph (b) upon the conversion, exchange or exercise of options to acquire shares of Common Stock by officers, directors or employees of Holdings; provided that the -------- exercise price of such options, at the time of issuance thereof, is at least equal to the then Current Market Value of the Common Stock underlying such options.
Appears in 1 contract
