Conversion of Note. (a) Upon the conversion of a Note or part thereof, the Company shall, at its own cost and expense, take all necessary action, including obtaining and delivering, an opinion of counsel to assure that the Company’s transfer agent shall issue stock certificates in the name of the converting Subscriber (or its permitted nominee) or such other persons as designated by Subscriber and in such denominations to be specified at conversion representing the number of shares of Common Stock issuable upon such conversion. The Company warrants and covenants that no instructions other than these instructions have been or will be given to any transfer agent of the Company’s Common Stock and that the certificates representing such shares shall contain no legend other than the usual 1933 Act restriction from transfer legend. In the event that the Shares are sold in a manner that complies with an exemption from registration, the Company will, to the extent such removal is permissible under applicable law as determined by the Company in its reasonable discretion (including, without limitation, based on the advice of the Company’s legal counsel), promptly instruct its counsel to issue to the transfer agent an opinion permitting removal of the legend indefinitely, provided that Subscriber delivers all reasonably requested representations in support of such opinion. (b) Pursuant to the terms of a Notice of Conversion and the Note, the Company shall (or, if a transfer agent is appointed, shall cause the transfer agent to) transmit the certificates representing the Shares to the holder of the Note by (i) issuing certificated shares to such holder, or (ii) if a transfer agent is appointed and the holder so elects, by crediting the account of the holder’s designated broker with the Depository Trust Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system within seven (7) business days after receipt by the Company of the Notice of Conversion (the “Delivery Date”). In the case of the exercise of the conversion rights set forth herein, the conversion privilege shall be deemed to have been exercised and the Shares issuable upon such conversion shall be deemed to have been issued upon the date of receipt by the Company of the Notice of Conversion in accordance with the requirements of the Note. The holder of the Note shall be treated for all purposes as the beneficial holder of such Shares, or, in the case that Company delivers physical certificates as set forth below, the record holder of such Shares, unless the holder provides the Company written instructions to the contrary. For avoidance of doubt, in the event that Shares cannot be delivered to the Holder via DWAC, (or, if no transfer agent is appointed) the Company shall deliver physical certificates representing the Shares by the Delivery Date to an address designated by the holder. (c) The Company understands that a delay in the delivery of the Conversion Shares in the form required pursuant to Section 7.1 hereof later than the Delivery Date could result in economic loss to the affected Subscriber. In addition to other damages or remedies at law or in equity to which the converting Note holder may be entitled, in the event that the Company fails for any reason to effect delivery of the Conversion Shares within ten (10) business days after the Delivery Date, such Subscriber will be entitled to revoke all or part of the relevant Notice of Conversion by delivery of a written notice to such effect to the Company whereupon the Company and such Subscriber shall each be restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described above shall be payable through the date notice of revocation or rescission is given to the Company.
Appears in 1 contract
Sources: Securities Purchase Agreement (Plures Technologies, Inc./De)
Conversion of Note. (a) Upon the conversion of a Note or part thereof, the Company shall, at its own cost and expense, take all necessary action, including obtaining and delivering, an opinion of counsel to assure that the Company’s 's transfer agent shall issue stock certificates in the name of the converting Subscriber (or its permitted nominee) or such other persons as designated by Subscriber and in such denominations to be specified at conversion representing the number of shares of Common Stock issuable upon such conversion. The Company warrants and covenants that no instructions other than these instructions have been or will be given to any the transfer agent of the Company’s 's Common Stock and that the certificates representing such shares shall contain no legend other than the usual 1933 Act restriction from legend set forth in Section 4(h). If and when a Subscriber sells the Shares, assuming (i) the Registration Statement (as defined below) is effective and the prospectus, as supplemented or amended, contained therein is current and (ii) such Subscriber or its agent confirms in writing to the transfer legendagent that such Subscriber has complied with the prospectus delivery requirements, the Company will reissue the Shares without restrictive legend and the Shares will be free-trading, and freely transferable. In the event that the Shares are sold in a manner that complies with an exemption from registration, the Company will, to the extent such removal is permissible under applicable law as determined by the Company in its reasonable discretion (including, without limitation, based on the advice of the Company’s legal counsel), will promptly instruct its counsel to issue to the transfer agent an opinion permitting removal of the legend (indefinitely, if pursuant to Rule 144(b)(1)(i) 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) Pursuant A Subscriber will give notice of its decision to exercise its right to convert the Note, interest, or part thereof by telecopying, or otherwise delivering a completed Notice of Conversion (a form of which is annexed as Exhibit A to the terms Note) to the Company via confirmed telecopier transmission or otherwise pursuant to Section 13(a) of this Agreement. Such Subscriber will not be required to surrender the Note until the Note has been fully converted or satisfied. Each date on which a Notice of Conversion and the Note, is telecopied to the Company in accordance with the provisions hereof by 6 PM Eastern Time (“ET”) (or if received by the Company after 6 PM ET then the next business day) shall (or, if be deemed a “Conversion Date.” The Company will itself or cause the Company’s transfer agent is appointed, shall cause the transfer agent to) to transmit the Company's Common Stock certificates representing the Shares to the holder issuable upon conversion of the Note by (i) issuing certificated shares to such holder, or Subscriber via express courier for receipt by such Subscriber within three (ii) if a transfer agent is appointed and the holder so elects, by crediting the account of the holder’s designated broker with the Depository Trust Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system within seven (73) business days after receipt by the Company of the Notice of Conversion is given by the Subscriber (such third day being the “"Delivery Date”"). In the case event the Shares are electronically transferable, then delivery of the exercise 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 conversion rights set forth herein, the conversion privilege shall Note not so converted will be deemed to have been exercised and the Shares issuable upon such conversion shall be deemed to have been issued upon the date of receipt provided by the Company of to such Subscriber if requested by Subscriber, provided such Subscriber delivers the Notice of Conversion in accordance with the requirements of the Note. The holder of the original Note shall be treated for all purposes as the beneficial holder of such Shares, or, in the case that Company delivers physical certificates as set forth below, the record holder of such Shares, unless the holder provides the Company written instructions to the contraryCompany. For avoidance of doubt, in In the event that Shares cana Subscriber elects not be delivered to the Holder via DWACsurrender a Note for reissuance upon partial payment or conversion of a Note, (or, if no transfer agent is appointed) such Subscriber hereby indemnifies the Company shall deliver physical certificates representing against any and all loss or damage attributable to a third-party claim in an amount in excess of the Shares by actual amount then due under the Delivery Date to an address designated by the holderNote.
(c) The Company understands that a delay in the delivery of the Conversion Shares in the form required pursuant to Section 7.1 hereof, or the Mandatory Redemption Amount described in Section 7.2 hereof, respectively later than the Delivery Date or the Mandatory Redemption Payment Date (as hereinafter defined) could result in economic loss to the Subscriber. As compensation to a Subscriber for such loss, the Company agrees to pay (as liquidated damages and not as a penalty) to such Subscriber for late issuance of Shares in the form required pursuant to Section 7.1 hereof later than upon Conversion of the Note in the amount of $100 per business day after the Delivery Date could result for each $10,000 of Note principal amount (and proportionately for other amounts) being converted of the corresponding Shares which are not timely delivered. The Company shall pay any payments incurred under this Section in economic loss immediately available funds upon demand. Furthermore, in addition to any other remedies which may be available to the affected Subscriber. In addition to other damages or remedies at law or in equity to which the converting Note holder may be entitled, in the event that the Company fails for any reason to effect delivery of the Conversion Shares within ten seven (107) business days after the Delivery DateDate or make payment within seven (7) business days after the Mandatory Redemption Payment Date (as defined in Section 7.2 below), such Subscriber will be entitled to revoke all or part of the relevant Notice of Conversion or rescind all or part of the notice of Mandatory Redemption by delivery of a written notice to such effect to the Company whereupon the Company and such Subscriber shall each be restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described above shall be payable through the date notice of revocation or rescission is given to the Company.
Appears in 1 contract
Sources: Subscription Agreement (Boomj Inc)
Conversion of Note. (a) Upon the conversion of a Note or part thereof, the Company shall, at its own cost and expense, take all necessary action, including obtaining and delivering, an opinion of counsel to assure that the Company’s 's transfer agent shall issue stock certificates in the name of the converting Subscriber (or its permitted nominee) or such other persons as designated by Subscriber and in such denominations to be specified at conversion representing the number of shares of Common Stock issuable upon such conversion. The Company warrants and covenants that no instructions other than these instructions have been or will be given to any the transfer agent of the Company’s 's Common Stock and that the certificates representing such shares shall contain no legend other than the usual 1933 Act restriction from transfer legend. In the event that the Shares are sold in a manner that complies with an exemption from registration, the Company will, to the extent such removal is permissible under applicable law as determined by the Company in its reasonable discretion (including, without limitation, based on the advice of the Company’s legal counsel), will promptly instruct its counsel to issue to the transfer agent an opinion permitting removal of the legend indefinitely, if pursuant to Rule 144(k) of the 1933 Act, provided that Subscriber delivers all reasonably requested representations in support of such opinion. When referred to herein, Rule 144(k) shall mean such sections of Rule 144 under the 1933 Act which allow resales of “restricted stock” (as employed in Rule 144) by non-affiliates of the Company without volume limitations and without further restriction on transfer.
(b) Pursuant A Subscriber will give notice of its decision to exercise its right to convert the Note, interest, or part thereof by telecopying, or otherwise delivering a completed Notice of Conversion (a form of which is annexed as “Exhibit A” to the terms Note) to the Company via confirmed telecopier transmission or otherwise pursuant to Section 13(a) of this Agreement. Such Subscriber will not be required to surrender the Note until the Note has been fully converted or satisfied. Each date on which a Notice of Conversion and the Note, is telecopied to the Company in accordance with the provisions hereof by 6 PM Eastern Time (“ET”) (or if received by the Company after 6 PM ET or at any time or a non-business day then the next business day) shall (or, if be deemed a “Conversion Date.” The Company will itself or cause the Company’s transfer agent is appointed, shall cause the transfer agent to) to transmit the Company's Common Stock certificates representing the Shares to the holder issuable upon conversion of the Note by (i) issuing certificated shares to such holder, or (ii) if a transfer agent is appointed and the holder so elects, Subscriber via express courier for receipt by crediting the account of the holder’s designated broker with the Depository Trust Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system such Subscriber within seven (7) business days after receipt by the Company of the Notice of Conversion (such seventh day being the “"Delivery Date”"). In the case event the Shares are electronically transferable, then delivery of the exercise 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 conversion rights set forth herein, the conversion privilege shall Note not so converted will be deemed to have been exercised and the Shares issuable upon such conversion shall be deemed to have been issued upon the date of receipt provided by the Company of to such Subscriber if requested by Subscriber, provided such Subscriber delivers the Notice of Conversion in accordance with the requirements of the Note. The holder of the original Note shall be treated for all purposes as the beneficial holder of such Shares, or, in the case that Company delivers physical certificates as set forth below, the record holder of such Shares, unless the holder provides the Company written instructions to the contraryCompany. For avoidance of doubt, in In the event that Shares cana Subscriber elects not be delivered to the Holder via DWACsurrender a Note for reissuance upon partial payment or conversion of a Note, (or, if no transfer agent is appointed) such Subscriber hereby indemnifies the Company shall deliver physical certificates representing against any and all loss or damage attributable to a third-party claim in an amount in excess of the Shares by actual amount then due under the Delivery Date to an address designated by the holderNote.
(c) The Company understands that a delay in the delivery of the Conversion Shares in the form required pursuant to Section 7.1 hereof later than the Delivery Date could result in economic loss to the affected Subscriber. In As compensation to a Subscriber for such loss, the Company agrees to pay (as liquidated damages and not as a penalty) to such Subscriber for late issuance of Shares in the form required pursuant to Section 7.1 hereof upon Conversion of the Note in the amount of $100 per business day after the Delivery Date for each $10,000 of Note principal amount (and proportionately for other amounts) being converted of the corresponding Shares which are not timely delivered. The Company shall pay any payments incurred under this Section in immediately available funds upon demand. Furthermore, in addition to any other damages or remedies at law or in equity to which the converting Note holder may be entitledavailable to the Subscriber, in the event that the Company fails for any reason to effect delivery of the Conversion Shares within ten seven (107) business days after the Delivery Date, such Subscriber will be entitled to revoke all or part of the relevant Notice of Conversion by delivery of a written notice to such effect to the Company whereupon the Company and such Subscriber shall each be restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described above shall be payable through the date notice of revocation or rescission is given to the Company.
Appears in 1 contract
Conversion of Note. (a) Upon the conversion of a Note or part thereof, the Company shall, at its own cost and expense, take all necessary action, including obtaining and delivering, an opinion of counsel to assure that the Company’s transfer agent shall issue stock certificates in the name of the converting Subscriber (or its permitted nominee) or such other persons as designated by Subscriber and in such denominations to be specified at conversion representing the number of shares of Common Stock issuable upon such conversion. The Company warrants and covenants that no instructions other than these instructions have been or will be given to any the transfer agent of the Company’s Common Stock and that the certificates representing such shares shall contain no legend other than the usual 1933 Act restriction from transfer legend. If and when a Subscriber sells the Conversion Shares (and Warrant Shares), assuming (i) the Registration Statement (as defined below) is effective and the prospectus, as supplemented or amended, contained therein is current and (ii) such Subscriber or its agent confirms in writing to the transfer agent that such Subscriber has complied with the prospectus delivery requirements, the Company will reissue the Conversion Shares (and Warrant Shares) without restrictive legend and the Conversion Shares (and Warrant Shares) will be free-trading, and freely transferable. In the event that the Conversion Shares (and Warrant Shares) are sold in a manner that complies with an exemption from registration, the Company will, to the extent such removal is permissible under applicable law as determined by the Company in its reasonable discretion (including, without limitation, based on the advice of the Company’s legal counsel), will promptly instruct its counsel to issue to the transfer agent an opinion permitting removal of the legend (indefinitely, if pursuant to Rule 144(k) of the 1933 Act, provided that Subscriber delivers all reasonably requested representations in support of such opinion).
(b) Pursuant A Subscriber will give notice of its decision to exercise its right to convert the Note, interest, or part thereof by telecopying, or otherwise delivering a completed Notice of Conversion (a form of which is annexed as Exhibit A to the terms Note) to the Company via confirmed telecopier transmission or otherwise pursuant to Section 13(a) of this Agreement. Such Subscriber will not be required to surrender the Note until the Note has been fully converted or satisfied. Each date on which a Notice of Conversion and the Note, is telecopied to the Company in accordance with the provisions hereof by 6PM Eastern Time (“ET”) (or if received by the Company after 6 PM ET, then the next business day) shall (or, if be deemed a “Conversion Date.” The Company will itself or cause the Company’s transfer agent is appointed, shall cause the transfer agent to) to transmit the Company’s Common Stock certificates representing the Conversion Shares to the holder of the Note such Subscriber via express courier for receipt by such Subscriber within three (i) issuing certificated shares to such holder, or (ii) if a transfer agent is appointed and the holder so elects, by crediting the account of the holder’s designated broker with the Depository Trust Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system within seven (73) business days after receipt by the Company of the Notice of Conversion (such third day being the “Delivery Date”). In the case event the Conversion Shares are electronically transferable, then delivery of the exercise 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 conversion rights set forth herein, the conversion privilege shall Note not so converted will be deemed to have been exercised and the Shares issuable upon such conversion shall be deemed to have been issued upon the date of receipt provided by the Company of to such Subscriber if requested by Subscriber, provided such Subscriber delivers the Notice of Conversion in accordance with the requirements of the Note. The holder of the original Note shall be treated for all purposes as the beneficial holder of such Shares, or, in the case that Company delivers physical certificates as set forth below, the record holder of such Shares, unless the holder provides the Company written instructions to the contrary. For avoidance of doubt, in the event that Shares cannot be delivered to the Holder via DWAC, (or, if no transfer agent is appointed) the Company shall deliver physical certificates representing the Shares by the Delivery Date to an address designated by the holderCompany.
(c) The Company understands that a delay in the delivery of the Conversion Shares in the form required pursuant to Section 7.1 hereof hereof, or the Mandatory Redemption Amount described in Section 7.2 hereof, respectively later than the Delivery Date or the Mandatory Redemption Payment Date (as hereinafter defined) could result in economic loss to the affected Subscriber. In As compensation to a Subscriber for such loss, the Company agrees to pay (as liquidated damages and not as a penalty) to such Subscriber for late issuance of Conversion Shares in the form required pursuant to Section 7.1 hereof upon Conversion of the Note, in the amount of $100 per business day after the Delivery Date for each $10,000 of Note principal and interest amount (and proportionately for other amounts) being converted of the corresponding Conversion Shares which are not timely delivered. The Company shall pay any payments incurred under this Section in immediately available funds upon demand. Furthermore, in addition to any other damages or remedies at law or in equity to which the converting Note holder may be entitledavailable to the Subscriber, in the event that the Company fails for any reason to effect delivery of the Conversion Shares within ten seven (107) business days after the Delivery DateDate or make payment within seven (7) business days after the Mandatory Redemption Payment Date (as defined in Section 7.2 below), such Subscriber will be entitled to revoke all or part of the relevant Notice of Conversion or rescind all or part of the notice of Mandatory Redemption by delivery of a written notice to such effect to the Company whereupon the Company and such Subscriber shall each be restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described above shall be payable through the date notice of revocation or rescission is given to the Company.
(d) The Company agrees and acknowledges that despite the pendency of a not yet effective Registration Statement which includes for registration the Registrable Securities (as defined in Section 11.1(iv)), a Subscriber is permitted to and the Company will issue to such Subscriber Conversion Shares and Warrant Shares upon exercise of the Warrants. Such Conversion Shares will, if required by law, bear the legends described in Section 4 above and if the requirements of Rule 144 under the 1933 Act are satisfied, be resalable thereunder.
Appears in 1 contract
Sources: Subscription Agreement (Commonwealth Biotechnologies Inc)
Conversion of Note. (a) Upon the conversion of a this Note or part thereof, the Company shall, at its own cost and expense, take all necessary action, including obtaining and delivering, an opinion of counsel to assure that the Company’s transfer agent shall issue stock certificates in the name of the converting Subscriber Holder (or its permitted nominee) or such other persons as designated by Subscriber Holder and in such denominations to be specified at conversion representing the number of shares of Common Stock Conversion Shares issuable upon such conversion. The Company warrants and covenants that no instructions other than these instructions have been or will be given to any the transfer agent of the Company’s Common Stock and that that, unless waived by the Holder, the Conversion Shares will be free-trading, and freely transferable, and will not contain a legend restricting the resale or transferability of the Conversion Shares provided the Conversion Shares are being sold pursuant to an effective registration statement covering the Conversion Shares or are otherwise exempt from registration.
(b) Subscriber will give notice of its decision to exercise its right to convert this Note or part thereof by telecopying an executed and completed Notice of Conversion (a form of which is attached as Exhibit A to the Note) to the Company via confirmed telecopier transmission or overnight courier or otherwise pursuant to Section 4.2 of this Note. The Subscriber will not be required to surrender this Note until this Note has been fully converted or satisfied, with each date on which a Notice of Conversion is telecopied to the Company in accordance with the provisions hereof shall be deemed a Conversion Date (as defined above). The Company will itself or cause the Company’s transfer agent to transmit the Company’s Common Stock certificates representing the Conversion Shares issuable upon conversion of this Note to the Subscriber via express courier for receipt by such shares shall contain no legend other than Subscriber on or before the usual 1933 Act restriction from transfer legendDelivery Date (as defined above). In the event that the Conversion Shares are sold in a manner that complies with an exemption from registrationelectronically transferable, then delivery of the Company will, to the extent Conversion Shares must be made by electronic transfer provided request for such removal is permissible under applicable law as determined electronic transfer has been made by the Company Subscriber and the Subscriber has complied with all applicable securities laws in its reasonable discretion (connection with the sale of the Common Stock, including, without limitation, based on the advice of the Company’s legal counsel), promptly instruct its counsel to issue to the transfer agent an opinion permitting removal of the legend indefinitely, provided that Subscriber delivers all reasonably requested representations in support of such opinion.
(b) Pursuant to the terms of a Notice of Conversion and the Note, the Company shall (or, if a transfer agent is appointed, shall cause the transfer agent to) transmit the certificates prospectus delivery requirements. A Note representing the Shares to the holder balance of the this Note by (i) issuing certificated shares to such holder, or (ii) if a transfer agent is appointed and the holder not so elects, by crediting the account of the holder’s designated broker with the Depository Trust Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system within seven (7) business days after receipt converted will be provided by the Company of the Notice of Conversion (the “Delivery Date”). In the case of the exercise of the conversion rights set forth herein, the conversion privilege shall be deemed to have been exercised and the Shares issuable upon such conversion shall be deemed to have been issued upon the date of receipt by the Company of the Notice of Conversion in accordance with the requirements of the Note. The holder of the Note shall be treated for all purposes as the beneficial holder of such Shares, or, in the case that Company delivers physical certificates as set forth below, the record holder of such Shares, unless the holder provides the Company written instructions to the contrary. For avoidance of doubtSubscriber if requested by Subscriber, in provided the event that Shares cannot be delivered Subscriber delivers the original Note to the Holder via DWAC, (or, if no transfer agent is appointed) the Company shall deliver physical certificates representing the Shares by the Delivery Date to an address designated by the holderCompany.
(c) The Company understands and agrees that a delay in the delivery of the Conversion Shares in the form required pursuant to Section 7.1 hereof later than 2.5(a) hereof, after the Delivery Date (as hereinafter defined) could result in economic loss to the affected SubscriberHolder. In As compensation to the Holder for such loss, the Company agrees to pay (as liquidated damages and not as a penalty) to the Holder for late issuance of Conversion Shares upon Conversion of the Note in the amount of S500 per business day after the Delivery Date for each $10,000 of Note principal amount being converted of the corresponding Conversion Shares which are not timely delivered. The Company shall pay any payments incurred under this Section in immediately available funds upon demand. Furthermore, in addition to any other damages or remedies at law or in equity to which the converting Note holder may be entitledavailable to the Holder, in the event that the Company fails for any reason to effect delivery of the Conversion Shares within ten (10) business days after by the Delivery Date, such Subscriber Date the Holder will be entitled to revoke all or part of the relevant Notice of Conversion by delivery of a written notice to such effect to the Company whereupon the Company and such Subscriber the Holder shall each be restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described above shall be payable through the date notice of revocation or rescission is given to the Company.
(d) Nothing contained herein or in any document referred to herein or delivered in connection herewith shall be deemed to establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event that the rate of interest or dividends required to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by the Company to the Holder and thus refunded to the Company.
Appears in 1 contract
Sources: Convertible Debenture (Mindpix Corp)
Conversion of Note. (a) Upon the conversion of a Note or part thereof, the Company shall, at its own cost and expense, take all necessary action, including obtaining and delivering, an opinion of counsel to assure that the Company’s 's transfer agent shall issue stock certificates in the name of the converting Subscriber (or its permitted nominee) or such other persons as designated by Subscriber and in such denominations to be specified at conversion representing the number of shares of Common Stock issuable upon such conversion. The Company warrants and covenants that no instructions other than these instructions have been or will be given to any the transfer agent of the Company’s 's Common Stock and that the certificates representing such shares shall contain no legend other than the usual 1933 Act restriction from transfer legend. If and when a Subscriber sells the Conversion Shares, assuming (i) the Registration Statement (as defined below) is effective and the prospectus, as supplemented or amended, contained therein is current and (ii) such Subscriber or its agent confirms in writing to the transfer agent that such Subscriber has complied with the prospectus delivery requirements, the Company will reissue the Conversion Shares without restrictive legend and the Conversion Shares will 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 will, to the extent such removal is permissible under applicable law as determined by the Company in its reasonable discretion (including, without limitation, based on the advice of the Company’s legal counsel), will promptly instruct its counsel to issue to the transfer agent an opinion permitting removal of the legend (indefinitely, if pursuant to Rule 144(k) of the 1933 Act, provided that Subscriber delivers all reasonably requested representations in support of such opinion).
(b) Pursuant A Subscriber will give notice of its decision to exercise its right to convert the Note, interest, or part thereof by telecopying, or otherwise delivering a completed Notice of Conversion (a form of which is annexed as Exhibit A to the terms Note) to the Company via confirmed telecopier transmission or otherwise pursuant to Section 13(a) of this Agreement. Such Subscriber will not be required to surrender the Note until the Note has been fully converted or satisfied. Each date on which a Notice of Conversion and the Note, is telecopied to the Company in accordance with the provisions hereof by 6 PM Eastern Time (“ET”) (or if received by the Company after 6 PM ET then the next business day) shall (or, if be deemed a “Conversion Date.” The Company will itself or cause the Company’s transfer agent is appointed, shall cause the transfer agent to) to transmit the Company's Common Stock certificates representing the Conversion Shares to the holder of the Note such Subscriber via express courier for receipt by such Subscriber within three (i) issuing certificated shares to such holder, or (ii) if a transfer agent is appointed and the holder so elects, by crediting the account of the holder’s designated broker with the Depository Trust Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system within seven (73) business days after receipt by the Company of the Notice of Conversion (such third day being the “"Delivery Date”"). In the case event the Conversion Shares are electronically transferable, then delivery of the exercise 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 conversion rights set forth herein, the conversion privilege shall Note not so converted will be deemed to have been exercised and the Shares issuable upon such conversion shall be deemed to have been issued upon the date of receipt provided by the Company of to such Subscriber if requested by Subscriber, provided such Subscriber delivers the Notice of Conversion in accordance with the requirements of the Note. The holder of the original Note shall be treated for all purposes as the beneficial holder of such Shares, or, in the case that Company delivers physical certificates as set forth below, the record holder of such Shares, unless the holder provides the Company written instructions to the contraryCompany. For avoidance of doubt, in In the event that Shares cana Subscriber elects not be delivered to the Holder via DWACsurrender a Note for reissuance upon partial payment or conversion of a Note, (or, if no transfer agent is appointed) such Subscriber hereby indemnifies the Company shall deliver physical certificates representing against any and all loss or damage attributable to a third-party claim in an amount in excess of the Shares by actual amount then due under the Delivery Date to an address designated by the holderNote.
(c) The Company understands that a delay in the delivery of the Conversion Shares in the form required pursuant to Section 7.1 hereof hereof, or the Mandatory Redemption Amount described in Section 7.2 hereof, respectively later than the Delivery Date or the Mandatory Redemption Payment Date (as hereinafter defined) could result in economic loss to the affected Subscriber. In As compensation to a Subscriber for such loss, the Company agrees to pay (as liquidated damages and not as a penalty) to such Subscriber for late issuance of Conversion Shares in the form required pursuant to Section 7.1 hereof upon Conversion of the Note in the amount of $100 per business day after the Delivery Date for each $10,000 of Note principal amount (and proportionately for other amounts) being converted of the corresponding Conversion Shares which are not timely delivered. The Company shall pay any payments incurred under this Section in immediately available funds upon demand. Furthermore, in addition to any other damages or remedies at law or in equity to which the converting Note holder may be entitledavailable to the Subscriber, in the event that the Company fails for any reason to effect delivery of the Conversion Shares within ten seven (107) business days after the Delivery DateDate or make payment within seven (7) business days after the Mandatory Redemption Payment Date (as defined in Section 7.2 below), such Subscriber will be entitled to revoke all or part of the relevant Notice of Conversion or rescind all or part of the notice of Mandatory Redemption by delivery of a written notice to such effect to the Company whereupon the Company and such Subscriber shall each be restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described above shall be payable through the date notice of revocation or rescission is given to the Company.
(d) The Company agrees and acknowledges that despite the pendency of a not yet effective Registration Statement which includes for registration the Registrable Securities (as defined in Section 11.1(iv)), a Subscriber is permitted to and the Company will issue to such Subscriber Conversion Shares and Warrant Shares upon exercise of the Warrants. Such Conversion Shares will, if required by law, bear the legends described in Section 4 above and if the requirements of Rule 144 under the 1933 Act are satisfied, be resalable thereunder.
Appears in 1 contract
Conversion of Note. (a) Upon the conversion of a Note or part thereof, the Company shall, at its own cost and expense, take all necessary action, including obtaining and delivering, an opinion of counsel to assure that the Company’s 's transfer agent shall issue stock certificates in the name of the converting Subscriber (or its permitted assignee or nominee) or such other persons as designated by Subscriber and in such denominations to be specified at conversion representing the number of shares of Common Stock Ordinary Shares issuable upon such conversion. The Company warrants and covenants that no instructions other than these instructions have been or will be given to any the transfer agent of the Company’s Common Stock 's Ordinary Shares and that the certificates representing such shares shall contain no legend other than the usual 1933 Act restriction from transfer legendlegend set forth in Section 4(h). In the event that the Conversion Shares are sold in a manner that complies with an exemption from registration, the Company will, to the extent such removal is permissible under applicable law as determined by the Company in its reasonable discretion (including, without limitation, based on the advice of the Company’s legal counsel), will promptly instruct its counsel to issue to the transfer agent an opinion permitting removal of the legend (indefinitely, if pursuant to Rule 144(b)(1)(i) of the 1933 Act, or for ninety (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) Pursuant A Subscriber will give notice of its decision to exercise its right to convert the Note, interest, or part thereof by telecopying, or otherwise delivering a completed Notice of Conversion (a form of which is annexed as Exhibit A to the terms Note) to the Company via confirmed telecopier transmission or otherwise pursuant to Section 12(a) of this Agreement. Such Subscriber will not be required to surrender the Note until the Note has been fully converted or satisfied. Each date on which a Notice of Conversion and the Note, is telecopied to the Company in accordance with the provisions hereof by 5 PM Eastern Time (“ET”) (or if received by the Company after 5 PM ET then the next business day) shall (or, if be deemed a “Conversion Date.” The Company will itself or cause the Company’s transfer agent is appointed, shall cause the transfer agent to) to transmit the Ordinary Shares certificates representing the Conversion Shares to the holder issuable upon conversion of the Note by (i) issuing certificated shares to such holder, or Subscriber via express courier for receipt by such Subscriber within three (ii) if a transfer agent is appointed and the holder so elects, by crediting the account of the holder’s designated broker with the Depository Trust Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system within seven (73) business days after receipt by the Company of the Notice of Conversion is given by the Subscriber (such third day being the “"Delivery Date”"). In the case of event the exercise of the conversion rights set forth herein, the conversion privilege shall be deemed to have been exercised Shares are electronically transferable and the Shares issuable upon are freely transferable under the 1933 Act, then delivery of the Shares must be made by electronic transfer provided request for such conversion shall electronic transfer has been made by the Subscriber. A Note representing the balance of the Note not so converted will be deemed to have been issued upon the date of receipt provided by the Company of to such Subscriber if requested by Subscriber, provided such Subscriber delivers the Notice of Conversion in accordance with the requirements of the Note. The holder of the original Note shall be treated for all purposes as the beneficial holder of such Shares, or, in the case that Company delivers physical certificates as set forth below, the record holder of such Shares, unless the holder provides the Company written instructions to the contraryCompany. For avoidance of doubt, in In the event that Shares cana Subscriber elects not be delivered to the Holder via DWACsurrender a Note for reissuance upon partial payment or conversion of a Note, (or, if no transfer agent is appointed) such Subscriber hereby indemnifies the Company shall deliver physical certificates representing against any and all loss or damage attributable to a third-party claim in an amount in excess of the Shares by actual amount then due under the Delivery Date to an address designated by the holderNote.
(c) The Company understands that a delay in the delivery of the Conversion Shares in the form required pursuant to Section 7.1 hereof hereof, later than the Delivery Date could result in economic loss to the affected Subscriber. In As compensation to a Subscriber for such loss, the Company agrees to pay (as liquidated damages and not as a penalty) to such Subscriber for late issuance of Conversion Shares in the form required pursuant to Section 7.1 hereof upon Conversion of the Note in the amount of $100 per business day after the Delivery Date for each $10,000 of Note principal and interest amount (and proportionately for other amounts) being converted of the corresponding Conversion Shares which are not timely delivered. The Company shall pay any payments incurred under this Section in immediately available funds upon demand. Furthermore, in addition to any other damages or remedies at law or in equity to which the converting Note holder may be entitledavailable to the Subscriber, in the event that the Company fails for any reason to effect delivery of the Conversion Shares within ten seven (107) business days after the Delivery Date, such Subscriber will be entitled to revoke all or part of the relevant Notice of Conversion by delivery of a written notice to such effect to the Company whereupon the Company and such Subscriber shall each be restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described above shall be payable through the date notice of revocation or rescission is given to the Company.
Appears in 1 contract
Sources: Subscription Agreement (China Cablecom Holdings, Ltd.)
Conversion of Note. (a) Upon the conversion of a this Note or part thereof, the Company shall, at its own cost and expense, take all necessary action, including obtaining and delivering, an opinion of counsel to assure that the Company’s transfer agent shall issue stock certificates in the name of the converting Subscriber Holder (or its permitted nominee) or such other persons as designated by Subscriber Holder and in such denominations to be specified at conversion representing the number of shares of Common Stock Conversion Shares issuable upon such conversion. The Company warrants and covenants that no instructions other than these instructions have been or will be given to any the transfer agent of the Company’s Common Stock and that that, unless waived by the Holder, the Conversion Shares will be free-trading, and freely transferable, and will not contain a legend restricting the resale or transferability of the Conversion Shares provided the Conversion Shares are being sold pursuant to an effective registration statement covering the Conversion Shares or are otherwise exempt from registration.
(b) Subscriber will give notice of its decision to exercise its right to convert this Note or part thereof by telecopying an executed and completed Notice of Conversion (a form of which is attached as Exhibit A to the Note) to the Company via confirmed telecopier transmission or overnight courier or otherwise pursuant to Section 4.2 of this Note. The Subscriber will not be required to surrender this Note until this Note has been fully converted or satisfied, with each date on which a Notice of Conversion is telecopied to the Company in accordance with the provisions hereof shall be deemed a Conversion Date (as defined above). The Company will itself or cause the Company’s transfer agent to transmit the Company’s Common Stock certificates representing the Conversion Shares issuable upon conversion of this Note to the Subscriber via express courier for receipt by such shares Subscriber on or before the Delivery Date (as defined above). In the event the Conversion Shares are electronically transferable, then delivery of the Conversion Shares must be made by electronic transfer provided request for such electronic transfer has been made by the Subscriber and the Subscriber has complied with all applicable securities laws in connection with the sale of the Common Stock, including, without limitation, the prospectus delivery requirements. A Note representing the balance of this Note not so converted will be provided by the Company to the Subscriber if requested by Subscriber, provided the Subscriber delivers the original Note to the Company.
(c) Nothing contained herein or in any document referred to herein or delivered in connection herewith shall contain no legend be deemed to establish or require the payment of a rate of interest or other than charges in excess of the usual 1933 Act restriction from transfer legendmaximum permitted by applicable law. In the event that the Shares are sold rate of interest or dividends required to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in a manner that complies with an exemption from registration, the Company will, to the extent excess of such removal is permissible under applicable law as determined maximum shall be credited against amounts owed by the Company in its reasonable discretion (including, without limitation, based on the advice of the Company’s legal counsel), promptly instruct its counsel to issue to the transfer agent an opinion permitting removal of the legend indefinitely, provided that Subscriber delivers all reasonably requested representations in support of such opinion.
(b) Pursuant to the terms of a Notice of Conversion and the Note, the Company shall (or, if a transfer agent is appointed, shall cause the transfer agent to) transmit the certificates representing the Shares to the holder of the Note by (i) issuing certificated shares to such holder, or (ii) if a transfer agent is appointed and the holder so elects, by crediting the account of the holder’s designated broker with the Depository Trust Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system within seven (7) business days after receipt by the Company of the Notice of Conversion (the “Delivery Date”). In the case of the exercise of the conversion rights set forth herein, the conversion privilege shall be deemed to have been exercised and the Shares issuable upon such conversion shall be deemed to have been issued upon the date of receipt by the Company of the Notice of Conversion in accordance with the requirements of the Note. The holder of the Note shall be treated for all purposes as the beneficial holder of such Shares, or, in the case that Company delivers physical certificates as set forth below, the record holder of such Shares, unless the holder provides the Company written instructions to the contrary. For avoidance of doubt, in the event that Shares cannot be delivered to the Holder via DWAC, (or, if no transfer agent is appointed) the Company shall deliver physical certificates representing the Shares by the Delivery Date to an address designated by the holder.
(c) The Company understands that a delay in the delivery of the Conversion Shares in the form required pursuant to Section 7.1 hereof later than the Delivery Date could result in economic loss to the affected Subscriber. In addition to other damages or remedies at law or in equity to which the converting Note holder may be entitled, in the event that the Company fails for any reason to effect delivery of the Conversion Shares within ten (10) business days after the Delivery Date, such Subscriber will be entitled to revoke all or part of the relevant Notice of Conversion by delivery of a written notice to such effect to the Company whereupon the Company and such Subscriber shall each be restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described above shall be payable through the date notice of revocation or rescission is given thus refunded to the Company.
Appears in 1 contract
Sources: Convertible Debenture (Mindpix Corp)
Conversion of Note. (a) Upon the conversion of a Note or part thereof, the Company shall, at its own cost and expense, take all necessary action, including obtaining and delivering, an opinion of counsel acceptable to assure the Company’s transfer agent, so that the Company’s 's transfer agent shall issue stock certificates in the name of the converting Subscriber (or its permitted nominee) or such other persons as designated by Subscriber and in such denominations to be specified at conversion representing the number of shares of Common Stock issuable upon such conversion. The Company warrants and covenants that no instructions other than these instructions have been or will be given to any the transfer agent of the Company’s 's Common Stock and that that, unless waived by the certificates representing such shares shall Subscriber, the Shares will be free-trading, and freely transferable, and will not contain no a legend other than restricting the usual 1933 Act restriction from transfer legend. In resale or transferability of the event that Shares, provided the Shares are being sold in a manner that complies with pursuant to an exemption effective registration statement covering the Shares or are otherwise exempt from registration, the Company will, to the extent such removal is permissible under applicable law as determined by the Company in its reasonable discretion (including, without limitation, based on the advice of the Company’s legal counsel), promptly instruct its counsel to issue to the transfer agent an opinion permitting removal of the legend indefinitely, provided that Subscriber delivers all reasonably requested representations in support of such opinion.
(b) Pursuant Subscriber will give notice of its decision to exercise its right to convert the Note, interest, any sum due to the terms Subscriber under the Transaction Documents including Liquidated Damages, or part thereof by telecopying an executed and completed Notice of Conversion (a form of which is annexed as Exhibit A to the Note) to the Company via confirmed telecopier transmission or otherwise pursuant to Section 13(a) of this Agreement. The Subscriber will not be required to surrender the Note until the Note has been fully converted or satisfied. Each date on which a Notice of Conversion and the Note, is telecopied to the Company in accordance with the provisions hereof shall (or, if be deemed a Conversion Date. The Company will itself or cause the Company’s transfer agent is appointed, shall cause the transfer agent to) to transmit the Company's Common Stock certificates representing the Shares to the holder issuable upon conversion of the Note to the Subscriber via express courier for receipt by such Subscriber within three (i) issuing certificated shares to such holder, or (ii) if a transfer agent is appointed and the holder so elects, by crediting the account of the holder’s designated broker with the Depository Trust Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system within seven (73) business days after receipt by the Company of the Notice of Conversion (such third day being the “"Delivery Date”"). In the case event the Shares are electronically transferable, then delivery of the exercise Shares must be made by electronic transfer provided request for such electronic transfer has been made by the Subscriber and the Subscriber has complied with all applicable securities laws in connection with the sale of the conversion rights set forth hereinCommon Stock, including, without limitation, the conversion privilege shall prospectus delivery requirements. A Note representing the balance of the Note not so converted will be deemed to have been exercised and the Shares issuable upon such conversion shall be deemed to have been issued upon the date of receipt provided by the Company to the Subscriber if requested by Subscriber, provided the Subscriber delivers the original Note to the Company. In the event that a Subscriber elects not to surrender a Note for reissuance upon partial payment or conversion, the Subscriber hereby indemnifies the Company against any and all loss or damage attributable to a third-party claim in an amount in excess of the Notice of Conversion in accordance with the requirements of actual amount then due under the Note. The holder of the Note shall be treated for all purposes “Business day” and “trading day” as the beneficial holder of such Shares, or, employed in the case Transaction Documents is a day that Company delivers physical certificates as set forth below, the record holder of such Shares, unless the holder provides the Company written instructions to the contrary. For avoidance of doubt, in the event that Shares cannot be delivered to the Holder via DWAC, (or, if no transfer agent New York Stock Exchange is appointed) the Company shall deliver physical certificates representing the Shares by the Delivery Date to an address designated by the holderopen for trading for three or more hours.
(c) The Company understands that a delay in the delivery of the Conversion Shares in the form required pursuant to Section 7.1 hereof, or the Mandatory Redemption Amount described in Section 7.2 hereof, respectively after the Delivery Date or the Mandatory Redemption Payment Date (as hereinafter defined) could result in economic loss to the Subscriber. As compensation to the Subscriber for such loss, the Company agrees to pay (as liquidated damages and not as a penalty) to the Subscriber for late issuance of Shares in the form required pursuant to Section 7.1 hereof later than upon Conversion of the Note in the amount of $100 per business day after the Delivery Date could result for each $10,000 of Note principal amount being converted of the corresponding Shares which are not timely delivered. The Company shall pay any payments incurred under this Section in economic loss immediately available funds upon demand. Furthermore, in addition to any other remedies which may be available to the affected Subscriber. In addition to other damages or remedies at law or in equity to which the converting Note holder may be entitled, in the event that the Company fails for any reason to effect delivery of the Conversion Shares within ten (10) business days after by the Delivery Date or make payment by the Mandatory Redemption Payment Date, such the Subscriber will be entitled to may revoke all or part of the relevant Notice of Conversion or rescind all or part of the notice of Mandatory Redemption by delivery of a written notice to such effect to the Company whereupon the Company and such the Subscriber shall each be restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described above shall be payable through the date notice of revocation or rescission is given to the Company.
(d) Nothing contained herein or in any document referred to herein or delivered in connection herewith shall be deemed to establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event that the rate of interest or dividends or damages required to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by the Company to the Subscriber and thus refunded to the Company.
Appears in 1 contract
Sources: Subscription Agreement (Next Inc/Tn)
Conversion of Note. (ai) Upon the conversion of a Note or part thereof, the Company shall, at its own cost and expense, take all necessary action, including obtaining executing and delivering, an opinion of counsel delivering to assure that the Company’s transfer agent shall written instructions to issue stock certificates in the name of the converting Subscriber (or its permitted nominee) or such other persons as designated by Subscriber (provided that each such other person provides to the Company in writing the representations set forth in Section 4 hereof) and in such denominations to be specified at conversion representing the number of shares of Common Stock Ordinary Shares issuable upon such conversion. The Company warrants and covenants that no instructions other than these instructions have been or will be given to any the transfer agent of the Company’s Common Stock and that the certificates representing such shares shall contain no legend Ordinary Shares (other than the usual 1933 Act restriction from transfer legend. In the event instructions that the Shares are sold in a manner that complies with an exemption from registration, the Company will, may be given to the extent such removal is permissible under applicable law as determined by the Company in its reasonable discretion (including, without limitation, based on the advice of the Company’s legal counsel), promptly instruct its counsel to issue to the transfer agent an opinion permitting removal pursuant to orders issued by the Commission, any state securities commission or any other regulatory authority) and that, unless waived by the Subscriber, the Note Shares will be free-trading, and freely transferable, and will not contain a legend restricting the resale or transferability of the legend indefinitely, Note Shares provided that Subscriber delivers all reasonably requested representations in support of such opinionthe Note Shares are being sold pursuant to an effective registration statement covering the Note Shares or are otherwise exempt from registration.
(bii) Pursuant Subscriber will give notice of its decision to exercise its right to convert the Note, interest, any sum due to the terms Subscriber under the Transaction Documents or part thereof by telecopying an executed and completed Notice of Conversion (a form of which is annexed as Exhibit A to the Note) to the Company via confirmed telecopier transmission or otherwise pursuant to Section 10(e) of this Agreement. The Subscriber will not be required to surrender the Note until the Note has been fully converted or satisfied (but until such surrender the Note will be convertible only with respect to any portion thereof not already converted). Each date on which a Notice of Conversion and the Note, is telecopied to the Company in accordance with the provisions hereof shall (or, if be deemed a Conversion Date. The Company will immediately notify its transfer agent is appointed, shall cause the transfer agent to) to transmit the Company’s Ordinary Share certificates representing the Note Shares to the holder issuable upon conversion of the Note to the Subscriber via express courier for receipt by such Subscriber within five (i) issuing certificated shares to such holder, or (ii) if a transfer agent is appointed and the holder so elects, by crediting the account of the holder’s designated broker with the Depository Trust Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system within seven (75) business days after receipt by the Company of the Notice of Conversion (such third day being the “Delivery Date”). In the case event the Note Shares are electronically transferable, then delivery of the exercise Shares must be made by electronic transfer provided request for such electronic transfer has been made by the Subscriber and the Subscriber has complied with all applicable securities laws in connection with the sale of the conversion rights set forth hereinOrdinary Shares, including, without limitation, the conversion privilege shall prospectus delivery requirements. A Note representing the balance of the Note not so converted will be deemed to have been exercised and the Shares issuable upon such conversion shall be deemed to have been issued upon the date of receipt provided by the Company of the Notice of Conversion in accordance with the requirements of the Note. The holder of the Note shall be treated for all purposes as the beneficial holder of such Shares, or, in the case that Company delivers physical certificates as set forth below, the record holder of such Shares, unless the holder provides the Company written instructions to the contrarySubscriber if requested by Subscriber, provided the Subscriber delivers the original Note to the Company. For avoidance of doubt, in In the event that Shares cana Subscriber elects not be delivered to surrender a Note for reissuance upon partial payment or conversion, the Holder via DWAC, (or, if no transfer agent is appointed) Subscriber hereby indemnifies the Company shall deliver physical certificates representing against any and all loss or damage attributable to a third-party claim in an amount in excess of the Shares by actual amount then due under the Delivery Date to an address designated by the holderNote.
(ciii) The Company understands that a delay in the delivery of the Conversion Note Shares in the form required pursuant to Section 7.1 hereof later than 7 hereof, after the Delivery Date could result in economic loss to the affected Subscriber. In As compensation to the Subscriber for such loss, the Company agrees to pay (as liquidated damages and not as a penalty) to the Subscriber for late issuance of Note Shares in the form required pursuant to Section 7 hereof upon Conversion of the Note in the amount of $100 per business day after the Delivery Date for each $10,000 of Note principal amount being converted for which the corresponding Note Shares are not timely delivered. The Company shall pay any payments incurred under this Section in immediately available funds upon demand. Furthermore, in addition to any other damages or remedies at law or in equity to which the converting Note holder may be entitledavailable to the Subscriber, in the event that the Company fails for any reason to effect delivery of the Conversion Note Shares within ten (10) business days after by the Delivery Date, such the Subscriber will be entitled to revoke all or part of the relevant Notice of Conversion by delivery of a written notice to such effect to the Company whereupon the Company and such the Subscriber shall each be restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described above shall be payable through the date notice of revocation or rescission is given to the Company.
(iv) Nothing contained herein or in any document referred to herein or delivered in connection herewith shall be deemed to establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event that the rate of interest or dividends required to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by the Company to the Subscriber and thus refunded to the Company.
Appears in 1 contract
Conversion of Note. (a) Upon the conversion of a Note or part thereof, the Company shall, at its own cost and expense, take all necessary action, including obtaining and delivering, an opinion of counsel to assure that the Company’s 's transfer agent shall issue stock certificates in the name of the converting Subscriber (or its permitted nominee) or such other persons as designated by Subscriber and in such denominations to be specified at conversion representing the number of shares of Common Stock issuable upon such conversion. The Company warrants and covenants that no instructions other than these instructions have been or will be given to any the transfer agent of the Company’s 's Common Stock and that the certificates representing such shares shall contain no legend other than the usual 1933 Act restriction from transfer legend. If and when the Subscriber sells the Shares, assuming (i) the Registration Statement (as defined below) is effective and the prospectus, as supplemented or amended, contained therein is current and (ii) the Subscriber or its agent confirms in writing to the transfer agent that the Subscriber has complied with the prospectus delivery requirements, the restrictive legend can be removed and the Shares will be free-trading, and freely transferable. In the event that the Shares are sold in a manner that complies with an exemption from registration, the Company will, to the extent such removal is permissible under applicable law as determined by the Company in its reasonable discretion (including, without limitation, based on the advice of the Company’s legal counsel), will promptly instruct its counsel to issue to the transfer agent an opinion permitting removal of the legend (indefinitely, provided that Subscriber delivers all reasonably requested representations in support if pursuant to Rule 144(k) of such opinionthe 1933 Act, or for 90 days if pursuant to the other provisions of Rule 144 of the 1933 Act).
(b) Pursuant Subscriber will give notice of its decision to exercise its right to convert the Note, interest, any sum due to the terms Subscriber under the Transaction Documents including Liquidated Damages, or part thereof by telecopying an executed and completed Notice of Conversion (a form of which is annexed as Exhibit A to the Note) to the Company via confirmed telecopier transmission or otherwise pursuant to Section 13(a) of this Agreement. The Subscriber will not be required to surrender the Note until the Note has been fully converted or satisfied. Each date on which a Notice of Conversion and the Note, is telecopied to the Company in accordance with the provisions hereof shall (or, if be deemed a Conversion Date. The Company will itself or cause the Company’s transfer agent is appointed, shall cause the transfer agent to) to transmit the Company's Common Stock certificates representing the Shares to the holder issuable upon conversion of the Note to the Subscriber via express courier for receipt by such Subscriber within three (i) issuing certificated shares to such holder, or (ii) if a transfer agent is appointed and the holder so elects, by crediting the account of the holder’s designated broker with the Depository Trust Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system within seven (73) business days after receipt by the Company of the Notice of Conversion (such fifth day being the “"Delivery Date”"). In the case event the Shares are electronically transferable, then delivery of the exercise Shares must be made by electronic transfer provided request for such electronic transfer has been made by the Subscriber and the Subscriber has complied with all applicable securities laws in connection with the sale of the conversion rights set forth hereinCommon Stock, including, without limitation, the conversion privilege shall prospectus delivery requirements. A Note representing the balance of the Note not so converted will be deemed to have been exercised and the Shares issuable upon such conversion shall be deemed to have been issued upon the date of receipt provided by the Company to the Subscriber if requested by Subscriber, provided the Subscriber delivers the original Note to the Company. In the event that a Subscriber elects not to surrender a Note for reissuance upon partial payment or conversion of a Note, the Subscriber hereby indemnifies the Company against any and all loss or damage attributable to a third-party claim in an amount in excess of the Notice of Conversion in accordance with the requirements of actual amount then due under the Note. The holder of the Note shall be treated for all purposes as the beneficial holder of such Shares, or, As employed in the case Transaction Documents “business day” and “trading day” is a day that Company delivers physical certificates as set forth below, the record holder of such Shares, unless the holder provides the Company written instructions to the contrary. For avoidance of doubt, in the event that Shares cannot be delivered to the Holder via DWAC, (or, if no transfer agent New York Stock Exchange is appointed) the Company shall deliver physical certificates representing the Shares by the Delivery Date to an address designated by the holderopen for trading for three or more hours.
(c) The Company understands that a delay in the delivery of the Conversion Shares in the form required pursuant to Section 7.1 hereof, or the Mandatory Redemption Amount described in Section 7.2 hereof, respectively after the Delivery Date or the Mandatory Redemption Payment Date (as hereinafter defined) could result in economic loss to the Subscriber. As compensation to the Subscriber for such loss, the Company agrees to pay (as liquidated damages and not as a penalty) to the Subscriber for late issuance of Shares in the form required pursuant to Section 7.1 hereof later than upon Conversion of the Note in the amount of $100 per business day after the Delivery Date could result for each $10,000 of Note principal amount being converted of the corresponding Shares which are not timely delivered. The Company shall pay any payments incurred under this Section in economic loss immediately available funds upon demand. Furthermore, in addition to any other remedies which may be available to the affected Subscriber. In addition to other damages or remedies at law or in equity to which the converting Note holder may be entitled, in the event that the Company fails for any reason to effect delivery of the Conversion Shares within ten (10) business days after by the Delivery Date or make payment by the Mandatory Redemption Payment Date, such the Subscriber will be entitled to revoke all or part of the relevant Notice of Conversion or rescind all or part of the notice of Mandatory Redemption by delivery of a written notice to such effect to the Company whereupon the Company and such the Subscriber shall each be restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described above shall be payable through the date notice of revocation or rescission is given to the Company.
(d) The Company agrees and acknowledges that despite the pendency of a not yet effective Registration Statement which includes for registration the Registrable Securities [as defined in Section 11.1(iv)], the Subscriber is permitted to and the Company will issue to the Subscriber Shares upon conversion of the Note and Warrant Shares upon exercise of the Warrants. Such Shares will, if required by law, bear the legends described in Section 4 above and if the requirements of Rule 144 under the 1933 Act are satisfied be resalable thereunder.
Appears in 1 contract
Sources: Subscription Agreement (Lotus Pharmaceuticals, Inc.)
Conversion of Note. (a) Upon the conversion of a Note or part thereof, the Company shall, at its own cost and expense, take all necessary action, including obtaining and delivering, an opinion of counsel to assure that the Company’s 's transfer agent shall issue stock certificates in the name of the converting Subscriber (or its permitted nominee) or such other persons as designated by Subscriber and in such denominations to be specified at conversion representing the number of shares of Common Stock issuable upon such conversion. The Company warrants and covenants that no instructions other than these instructions have been or will be given to any the transfer agent of the Company’s 's Common Stock and that the certificates representing such shares shall contain no legend other than the usual 1933 Act restriction from transfer legend. If and when the Subscriber sells the Shares, assuming (i) the Registration Statement (as defined below) is effective and the prospectus, as supplemented or amended, contained therein is current and (ii) the Subscriber or its agent confirms in writing to the transfer agent that the Subscriber has complied with the prospectus delivery requirements, the restrictive legend can be removed and the Shares will be free-trading, and freely transferable. In the event that the Shares are sold in a manner that complies with an exemption from registration, the Company will, to the extent such removal is permissible under applicable law as determined by the Company in its reasonable discretion (including, without limitation, based on the advice of the Company’s legal counsel), will promptly instruct its counsel to issue to the transfer agent an opinion permitting removal of the legend (indefinitely, provided that Subscriber delivers all reasonably requested representations in support if pursuant to Rule 144(k) of such opinionthe 1933 Act, or for 90 days if pursuant to the other provisions of Rule 144 of the 1933 Act).
(b) Pursuant Subscriber will give notice of its decision to exercise its right to convert the Note, interest, any sum due to the terms Subscriber under the Transaction Documents including Liquidated Damages, or part thereof by telecopying an executed and completed Notice of Conversion (a form of which is annexed as Exhibit A to the Note) to the Company via confirmed telecopier transmission or otherwise pursuant to Section 13(a) of this Agreement. The Subscriber will not be required to surrender the Note until the Note has been fully converted or satisfied. Each date on which a Notice of Conversion and the Note, is telecopied to the Company in accordance with the provisions hereof by 6 PM EST (or if received by the Company after 6 PM EST then the next business day) shall (or, if be deemed a “Conversion Date.” The Company will itself or cause the Company’s transfer agent is appointed, shall cause the transfer agent to) to transmit the Company's Common Stock certificates representing the Shares to the holder issuable upon conversion of the Note to the Subscriber via express courier for receipt by such Subscriber within three (i) issuing certificated shares to such holder, or (ii) if a transfer agent is appointed and the holder so elects, by crediting the account of the holder’s designated broker with the Depository Trust Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system within seven (73) business days after receipt by the Company of the Notice of Conversion (such third day being the “"Delivery Date”"). In the case event the Shares are electronically transferable, then delivery of the exercise Shares must be made by electronic transfer provided request for such electronic transfer has been made by the Subscriber and the Subscriber has complied with all applicable securities laws in connection with the sale of the conversion rights set forth hereinCommon Stock, including, without limitation, the conversion privilege shall prospectus delivery requirements. A Note representing the balance of the Note not so converted will be deemed to have been exercised and the Shares issuable upon such conversion shall be deemed to have been issued upon the date of receipt provided by the Company to the Subscriber if requested by Subscriber, provided the Subscriber delivers the original Note to the Company. In the event that a Subscriber elects not to surrender a Note for reissuance upon partial payment or conversion of a Note, the Subscriber hereby indemnifies the Company against any and all loss or damage attributable to a third-party claim in an amount in excess of the Notice of Conversion in accordance with the requirements of actual amount then due under the Note. The holder of the Note shall be treated for all purposes as the beneficial holder of such Shares, or, As employed in the case Transaction Documents “business day” and “trading day” is a day that Company delivers physical certificates as set forth below, the record holder of such Shares, unless the holder provides the Company written instructions to the contrary. For avoidance of doubt, in the event that Shares cannot be delivered to the Holder via DWAC, (or, if no transfer agent New York Stock Exchange is appointed) the Company shall deliver physical certificates representing the Shares by the Delivery Date to an address designated by the holderopen for trading for three or more hours.
(c) The Company understands that a delay in the delivery of the Conversion Shares in the form required pursuant to Section 7.1 hereof, or the Mandatory Redemption Amount described in Section 7.2 hereof, respectively later than two business days after the Delivery Date or the Mandatory Redemption Payment Date (as hereinafter defined) could result in economic loss to the Subscriber. As compensation to the Subscriber for such loss, the Company agrees to pay (as liquidated damages and not as a penalty) to the Subscriber for late issuance of Shares in the form required pursuant to Section 7.1 hereof later than upon Conversion of the Note in the amount of $100 per business day after the Delivery Date could result for each $10,000 of Note principal amount being converted of the corresponding Shares which are not timely delivered. The Company shall pay any payments incurred under this Section in economic loss immediately available funds upon demand. Furthermore, in addition to any other remedies which may be available to the affected Subscriber. In addition to other damages or remedies at law or in equity to which the converting Note holder may be entitled, in the event that the Company fails for any reason to effect delivery of the Conversion Shares within ten (10) by 7 business days after the Delivery Date or make payment by 7 business days after the Mandatory Redemption Payment Date, such the Subscriber will be entitled to revoke all or part of the relevant Notice of Conversion or rescind all or part of the notice of Mandatory Redemption by delivery of a written notice to such effect to the Company whereupon the Company and such the Subscriber shall each be restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described above shall be payable through the date notice of revocation or rescission is given to the Company.
(d) The Company agrees and acknowledges that despite the pendency of a not yet effective Registration Statement which includes for registration the Registrable Securities (as defined in Section 11.1(iv)), the Subscriber is permitted to and the Company will issue to the Subscriber Shares upon conversion of the Note and Warrant Shares upon exercise of the Warrants. Such Shares will, if required by law, bear the legends described in Section 4 above and if the requirements of Rule 144 under the 1933 Act are satisfied be resalable thereunder.
Appears in 1 contract
Sources: Subscription Agreement (Liberty Star Uranium & Metals Corp.)
Conversion of Note. (a) Upon the conversion of a Note or part thereofthereof as provided for in Section 2.1(a) of the Note, the Company shall, at its own cost and expense, take all necessary action, including obtaining and delivering, an opinion of counsel to assure that the Company’s 's transfer agent shall issue stock certificates in the name of the converting Subscriber (or its permitted nominee) or such other persons as designated by Subscriber and in such denominations to be specified at conversion representing the number of shares of Common Stock issuable upon such conversion. The Company warrants and covenants that no instructions other than these instructions have been or will be given to any the transfer agent of the Company’s 's Common Stock and that the certificates representing such shares shall contain no legend other than the usual 1933 Act restriction from transfer legend. Examples of such legends are provided for in Section 4 of this Agreement. If and when the Subscriber sells the Shares, assuming (i) the Registration Statement (as defined below) is effective and the prospectus, as supplemented or amended, contained therein is current and (ii) the Subscriber or its agent confirms in writing to the transfer agent that the Subscriber has complied with the prospectus delivery requirements, the restrictive legend can be removed and the Shares will be free-trading, and freely transferable. In the event that the Shares are sold in a manner that complies with an exemption from registration, the Company will, to the extent such removal is permissible under applicable law as determined by the Company in its reasonable discretion (including, without limitation, based on the advice of the Company’s legal counsel), will promptly instruct its counsel to issue to the transfer agent an opinion permitting removal of the legend (indefinitely, provided that Subscriber delivers all reasonably requested representations if pursuant to Rule 144(k) of the 1933 Act or in support accordance with the other relevant provisions of such opinionRule 144 of the 1933 Act).
(b) Pursuant Subscriber will give notice of its decision to exercise its right to convert the Note, or part thereof as provided for in Section 2.1(a) of the Note by telecopying an executed and completed Notice of Conversion (a form of which is annexed as Exhibit A to the terms Note) to the Company via confirmed telecopier transmission or otherwise pursuant to Section 13(a) of this Agreement. The Subscriber will not be required to surrender the Note until the Note has been fully converted or satisfied. Each date on which a Notice of Conversion and the Note, is telecopied to the Company in accordance with the provisions hereof shall (or, if be deemed a Conversion Date. The Company will itself or cause the Company's transfer agent is appointed, shall cause the transfer agent to) to transmit the Company's Common Stock certificates representing the Shares to the holder issuable upon conversion of the Note to the Subscriber via express courier for receipt by such Subscriber within three (i) issuing certificated shares to such holder, or (ii) if a transfer agent is appointed and the holder so elects, by crediting the account of the holder’s designated broker with the Depository Trust Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system within seven (73) business days after receipt by the Company of the Notice of Conversion (such fifth day being the “"Delivery Date”"). In the case event the Shares are electronically transferable, then delivery of the exercise Shares must be made by electronic transfer provided request for such electronic transfer has been made by the Subscriber and the Subscriber has complied with all applicable securities laws in connection with the sale of the conversion rights set forth hereinCommon Stock, including, without limitation, the conversion privilege shall prospectus delivery requirements. A Note representing the balance of the Note not so converted will be deemed to have been exercised and the Shares issuable upon such conversion shall be deemed to have been issued upon the date of receipt provided by the Company of the Notice of Conversion in accordance with the requirements of the Note. The holder of the Note shall be treated for all purposes as the beneficial holder of such Shares, or, in the case that Company delivers physical certificates as set forth below, the record holder of such Shares, unless the holder provides the Company written instructions to the contrarySubscriber if requested by Subscriber, provided the Subscriber delivers the original Note to the Company. For avoidance of doubt, in In the event that Shares cana Subscriber elects not be delivered to surrender a Note for reissuance upon partial payment or conversion of a Note, the Holder via DWAC, (or, if no transfer agent is appointed) Subscriber hereby indemnifies the Company shall deliver physical certificates representing against any and all loss or damage attributable to a third-party claim in an amount in excess of the Shares by actual amount then due under the Delivery Date to an address designated by the holderNote.
(c) The Company understands that a delay in the delivery of the Conversion Shares in the form required pursuant to Section 7.1 hereof, or the Mandatory Redemption Amount described in Section 7.2 hereof, respectively after the Delivery Date or the Mandatory Redemption Payment Date (as hereinafter defined) could result in economic loss to the Subscriber. As compensation to the Subscriber for such loss, the Company agrees to pay (as liquidated damages and not as a penalty) to the Subscriber for late issuance of Shares in the form required pursuant to Section 7.1 hereof later than upon Conversion of the Note in the amount of $100 per business day after the Delivery Date could result for each $10,000 of Note principal amount being converted of the corresponding Shares which are not timely delivered. The Company shall pay any payments incurred under this Section in economic loss immediately available funds upon demand. Furthermore, in addition to any other remedies which may be available to the affected Subscriber. In addition to other damages or remedies at law or in equity to which the converting Note holder may be entitled, in the event that the Company fails for any reason to effect delivery of the Conversion Shares within ten (10) business days after by the Delivery Date or make payment by the Mandatory Redemption Payment Date, such the Subscriber will be entitled to revoke all or part of the relevant Notice of Conversion or rescind all or part of the notice of Mandatory Redemption by delivery of a written notice to such effect to the Company whereupon the Company and such the Subscriber shall each be restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described above shall be payable through the date notice of revocation or rescission is given to the Company.
(d) The Company agrees and acknowledges that despite the pendency of a not yet effective Registration Statement which includes for registration the Registrable Securities as defined in Section 11.1(iv), the Subscriber is permitted to and the Company will issue to the Subscriber Shares upon conversion of the Note and Warrant Shares upon exercise of the Warrants. Such Shares will, if required by law, bear the legends described in Section 4 above and if the requirements of Rule 144 under the 1933 Act are satisfied be immediately resalable thereunder.
Appears in 1 contract
Conversion of Note. (a) Upon the conversion of a Note or part thereofthereof in accordance with the terms and conditions thereof and applicable law, the Company shall, at its own cost and expense, take all necessary action, including obtaining and delivering, an opinion of counsel to assure that the Company’s 's transfer agent shall issue stock certificates in the name of the converting Subscriber (or its permitted nominee) or such other persons as designated by Subscriber and in such denominations to be specified at conversion representing the number of shares of Common Stock issuable upon such conversion. The Company warrants and covenants that other than as expressly set forth in the Transaction Documents, if at all, no instructions other than these instructions have been or will be given to any the transfer agent of the Company’s 's Common Stock and that the certificates representing such shares shall contain no legend other than the usual 1933 Act restriction from transfer legend. If and when the Subscriber sells the Shares, assuming (i) the Registration Statement (as defined below) is effective and the prospectus, as supplemented or amended, contained therein is current and (ii) the Subscriber or its agent confirms in writing to the transfer agent that the Subscriber has complied with the prospectus delivery requirements, the Company will reissue the Shares without restrictive legend and the Shares will be free-trading, and freely transferable. In the event that the Shares are sold in a manner that complies with an exemption from registration, the Company will, to the extent such removal is permissible under applicable law as determined by the Company in its reasonable discretion (including, without limitation, based on the advice of the Company’s legal counsel), will promptly instruct its counsel to issue to the transfer agent an opinion permitting removal of the legend (indefinitely, provided that Subscriber delivers all reasonably requested representations in support if pursuant to Rule 144(k) of such opinionthe 1933 Act).
(b) Pursuant Each Subscriber will give notice of such Subscriber’s decision to exercise the Subscriber’s right to convert the Note, interest, or part thereof by telecopying, or otherwise delivering a completed Notice of Conversion (a form of which is annexed as Exhibit A to the terms Note) together with the Note to the Company via confirmed telecopier transmission or otherwise pursuant to Section 14(a) of this Agreement. The Subscriber will not be required to surrender the Note until the Note has been fully converted or satisfied. Each date on which a Notice of Conversion and the Note, is telecopied to the Company in accordance with the provisions hereof by 5 PM E.S.T. (or if received by the Company after 5 PM E.S.T. then the next business day) shall (or, if be deemed a “Conversion Date.” The Company will itself or cause the Company’s transfer agent is appointed, shall cause the transfer agent to) to transmit the Company's Common Stock certificates representing the Shares to the holder issuable upon conversion of the Note to the Subscriber via express courier for receipt by such Subscriber within three (i) issuing certificated shares to such holder, or (ii) if a transfer agent is appointed and the holder so elects, by crediting the account of the holder’s designated broker with the Depository Trust Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system within seven (73) business days after receipt by the Company of applicable Conversion Date (such third day being the Notice of Conversion (the “"Delivery Date”"). In the case event the Shares are electronically transferable, then delivery of the exercise 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 conversion rights set forth herein, the conversion privilege shall Note not so converted will be deemed to have been exercised and the Shares issuable upon such conversion shall be deemed to have been issued upon the date of receipt provided by the Company of the Notice of Conversion in accordance with the requirements of the Note. The holder of the Note shall be treated for all purposes as the beneficial holder of such Shares, or, in the case that Company delivers physical certificates as set forth below, the record holder of such Shares, unless the holder provides the Company written instructions to the contrarySubscriber if requested by Subscriber, provided the Subscriber delivers the original Note to the Company. For avoidance of doubt, in In the event that Shares cana Subscriber elects not be delivered to surrender a Note for reissuance upon partial payment or conversion of a Note, the Holder via DWAC, (or, if no transfer agent is appointed) Subscriber hereby indemnifies the Company shall deliver physical certificates representing against any and all loss or damage attributable to a third-party claim in an amount in excess of the Shares by actual amount then due under the Delivery Date to an address designated by the holderNote.
(c) The Company understands agrees and acknowledges that a delay despite the pendency of any not yet effective Registration Statement which includes for registration the Registrable Securities (as defined in Section 11.1(i)), the delivery Subscriber is permitted to and the Company will issue to the Subscriber Shares upon conversion of the Conversion Note and Warrant Shares in the form required pursuant to Section 7.1 hereof later than the Delivery Date could result in economic loss to the affected Subscriber. In addition to other damages or remedies at law or in equity to which the converting Note holder may be entitled, in the event that the Company fails for any reason to effect delivery upon exercise of the Conversion Warrants. Such Shares within ten (10) business days after will, if required by law, bear the Delivery Datelegends described in Section 4 above and if the requirements of Rule 144 under the 1933 Act are satisfied, such Subscriber will be entitled to revoke all or part of the relevant Notice of Conversion by delivery of a written notice to such effect to the Company whereupon the Company and such Subscriber shall each be restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described above shall be payable through the date notice of revocation or rescission is given to the Companyresalable thereunder.
Appears in 1 contract
Conversion of Note. (a) Upon the conversion of a Note or part thereof, the Company shall, at its own cost and expense, take all necessary action, including obtaining and delivering, delivering an opinion of counsel to assure that the Company’s 's transfer agent shall issue stock certificates in the name of the converting Subscriber (or its permitted nominee) or such other persons as designated by Subscriber and in such denominations to be specified at conversion representing the number of shares of Common Stock issuable upon such conversion. The Company warrants and covenants that no instructions other than these instructions have been or will be given to any the transfer agent of the Company’s 's Common Stock and that that, unless waived by the certificates representing such shares shall Subscriber or otherwise required by federal and/or state securities laws, the Shares will be free-trading, and freely transferable, and will not contain no a legend other than restricting the usual 1933 Act restriction from transfer legend. In resale or transferability of the event that Shares, provided the Shares are being sold in a manner that complies with pursuant to an effective registration statement covering the Shares or are otherwise being sold pursuant to an exemption from registration, the Company will, to the extent such removal is permissible under applicable law as determined by the Company in its reasonable discretion (including, without limitation, based on the advice of the Company’s legal counsel), promptly instruct its counsel to issue to the transfer agent an opinion permitting removal of the legend indefinitely, provided that Subscriber delivers all reasonably requested representations in support of such opinion.
(b) Pursuant Subscriber will give notice of its decision to exercise its right to convert the Note, interest, any sum due to the terms Subscriber under the Transaction Documents, or part thereof by telecopying an executed and completed Notice of Conversion (a form of which is annexed as Exhibit A to the Note) to the Company via confirmed telecopier transmission or otherwise pursuant to Section 13(a) of this Agreement. The Subscriber will not be required to surrender the Note until the Note has been fully converted or satisfied. Each date on which a Notice of Conversion and the Note, is telecopied to the Company in accordance with the provisions hereof shall (or, if be deemed a Conversion Date. The Company will itself or cause the Company's transfer agent is appointed, shall cause the transfer agent to) to transmit the Company's Common Stock certificates representing the Shares to the holder issuable upon conversion of the Note to the Subscriber via express courier for receipt by such Subscriber within three (i) issuing certificated shares to such holder, or (ii) if a transfer agent is appointed and the holder so elects, by crediting the account of the holder’s designated broker with the Depository Trust Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system within seven (73) business days after receipt by the Company of the Notice of Conversion (such third day being the “"Delivery Date”"). In the case event the Shares are electronically transferable, then delivery of the exercise Shares must be made by electronic transfer provided request for such electronic transfer has been made by the Subscriber and the Subscriber has complied with all applicable securities laws in connection with the sale of the conversion rights set forth hereinCommon Stock, including, without limitation, the conversion privilege shall prospectus delivery requirements. A Note representing the balance of the Note not so converted will be deemed to have been exercised and the Shares issuable upon such conversion shall be deemed to have been issued upon the date of receipt provided by the Company to the Subscriber if requested by Subscriber, provided the Subscriber delivers the original Note to the Company. In the event that a Subscriber elects not to surrender a Note for reissuance upon partial payment or conversion, the Subscriber hereby indemnifies the Company against any and all loss or damage attributable to a third-party claim in an amount in excess of the Notice of Conversion actual amount then due under the Note, and the Company is hereby expressly authorized to offset any such amounts mutually agreed upon by the Company and the Subscriber or pursuant to a judgment in accordance with the requirements of Company's favor against amounts then due under the Note. The holder of the Note shall be treated for all purposes "Business day" and "trading day" as the beneficial holder of such Shares, or, employed in the case that Company delivers physical certificates as set forth below, the record holder of such Shares, unless the holder provides the Company written instructions to the contrary. For avoidance of doubt, in the event that Shares cannot be delivered to the Holder via DWAC, (or, if no transfer agent Transaction Documents is appointed) the Company shall deliver physical certificates representing the Shares by the Delivery Date to an address designated by the holder.
(c) The Company understands that a delay in the delivery of the Conversion Shares in the form required pursuant to Section 7.1 hereof later than the Delivery Date could result in economic loss to the affected Subscriber. In addition to other damages or remedies at law or in equity to which the converting Note holder may be entitled, in the event day that the Company fails New York Stock Exchange is open for any reason to effect delivery of the Conversion Shares within ten (10) business days after the Delivery Date, such Subscriber will be entitled to revoke all trading for three or part of the relevant Notice of Conversion by delivery of a written notice to such effect to the Company whereupon the Company and such Subscriber shall each be restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described above shall be payable through the date notice of revocation or rescission is given to the Companymore hours.
Appears in 1 contract
Conversion of Note. (a) Upon the conversion of a Note or part thereof, the Company shall, at its own cost and expense, take all necessary action, including obtaining and delivering, an opinion of counsel acceptable to assure the Company’s transfer agent, so that the Company’s transfer agent shall issue stock certificates in the name of the converting Subscriber (or its permitted nominee) or such other persons as designated by Subscriber and in such denominations to be specified at conversion representing the number of shares of Common Stock issuable upon such conversion. The Company warrants and covenants that no instructions other than these instructions have been or will be given to any the transfer agent of the Company’s Common Stock and that that, unless waived by the certificates representing such shares shall Subscriber, the Shares will be free-trading, and freely transferable, and will not contain no a legend other than restricting the usual 1933 Act restriction from transfer legend. In resale or transferability of the event that Shares provided the Shares are being sold in a manner that complies with pursuant to an exemption effective registration statement covering the Shares or are otherwise exempt from registration, the Company will, to the extent such removal is permissible under applicable law as determined by the Company in its reasonable discretion (including, without limitation, based on the advice of the Company’s legal counsel), promptly instruct its counsel to issue to the transfer agent an opinion permitting removal of the legend indefinitely, provided that Subscriber delivers all reasonably requested representations in support of such opinion.
(b) Pursuant Subscriber will give notice of its decision to exercise its right to convert the Note and/or interest by telecopying an executed and completed Notice of Conversion (a form of which is annexed as Exhibit A to the terms Note) to the Company via confirmed telecopier transmission or otherwise pursuant to Section 13(a) of this Agreement. The Subscriber will not be required to surrender the Note until the Note has been fully converted or satisfied. Each date on which a Notice of Conversion and the Note, is telecopied to the Company in accordance with the provisions hereof shall (or, if be deemed a Conversion Date. The Company will itself or cause the Company’s transfer agent is appointed, shall cause the transfer agent to) to transmit the Company’s Common Stock certificates representing the Shares to the holder issuable upon conversion of the Note to the Subscriber via express courier for receipt by such Subscriber within three (i) issuing certificated shares to such holder, or (ii) if a transfer agent is appointed and the holder so elects, by crediting the account of the holder’s designated broker with the Depository Trust Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system within seven (73) business days after receipt by the Company of the Notice of Conversion (such third day being the “Delivery Date”). In the case event the Shares are electronically transferable, then delivery of the exercise Shares must be made by electronic transfer provided request for such electronic transfer has been made by the Subscriber and the Subscriber has complied with all applicable securities laws in connection with the sale of the conversion rights set forth hereinCommon Stock, including, without limitation, the conversion privilege shall prospectus delivery requirements. A Note representing the balance of the Note not so converted will be deemed to have been exercised and the Shares issuable upon such conversion shall be deemed to have been issued upon the date of receipt provided by the Company to the Subscriber if requested by Subscriber, provided the Subscriber delivers the original Note to the Company. In the event that a Subscriber elects not to surrender a Note for reissuance upon partial payment or conversion, the Subscriber hereby indemnifies the Company against any and all loss or damage attributable to a third-party claim in an amount in excess of the Notice of Conversion in accordance with the requirements of actual amount then due under the Note. The holder of the Note shall be treated for all purposes “Business day” and “trading day” as the beneficial holder of such Shares, or, employed in the case Transaction Documents is a day that Company delivers physical certificates as set forth below, the record holder of such Shares, unless the holder provides the Company written instructions to the contrary. For avoidance of doubt, in the event that Shares cannot be delivered to the Holder via DWAC, (or, if no transfer agent New York Stock Exchange is appointed) the Company shall deliver physical certificates representing the Shares by the Delivery Date to an address designated by the holderopen for trading for three or more hours.
(c) The Company understands that a delay in the delivery of the Conversion Shares in the form required pursuant to Section 7.1 hereof, or the Mandatory Redemption Amount described in Section 7.2 hereof, respectively after the Delivery Date or the Mandatory Redemption Payment Date (as hereinafter defined) could result in economic loss to the Subscriber. As compensation to the Subscriber for such loss, the Company agrees to pay (as liquidated damages and not as a penalty) to the Subscriber for late issuance of Shares in the form required pursuant to Section 7.1 hereof later than upon Conversion of the Note in the amount of $100 per business day after the Delivery Date could result for each $10,000 of Note principal amount being converted of the corresponding Shares which are not timely delivered. The Company shall pay any payments incurred under this Section in economic loss immediately available funds upon demand. Furthermore, in addition to any other remedies which may be available to the affected Subscriber. In addition to other damages or remedies at law or in equity to which the converting Note holder may be entitled, in the event that the Company fails for any reason to effect delivery of the Conversion Shares within ten (10) business days after by the Delivery Date or make payment by the Mandatory Redemption Payment Date, such the Subscriber will be entitled to may revoke all or part of the relevant Notice of Conversion or rescind all or part of the notice of Mandatory Redemption by delivery of a written notice to such effect to the Company whereupon the Company and such the Subscriber shall each be restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described above shall be payable through the date notice of revocation or rescission is given to the Company.
(d) Nothing contained herein or in any document referred to herein or delivered in connection herewith shall be deemed to establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event that the rate of interest or dividends required to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by the Company to the Subscriber and thus refunded to the Company.
Appears in 1 contract
Conversion of Note. (ai) Upon the conversion of a Note or part thereof, the Company shall, at its own cost and expense, promptly take all necessary action, including obtaining and delivering, an opinion of counsel to assure that the Company’s 's transfer agent shall agent, and issue stock certificates in the name of the converting Subscriber (or its permitted nominee) or such other persons as designated by Subscriber and in such denominations to be specified at conversion representing the number of shares of Common Stock issuable upon such conversion. The Company warrants and covenants that no instructions other than these instructions have been or will be given to any the transfer agent of the Company’s 's Common Stock and that that, unless waived by Subscriber, provided the issuance of the Conversion Shares is then subject to a current and effective registration statement, the certificates representing such shares shall for the Conversion Shares will not contain no a legend other than restricting their resale or transferability provided the usual 1933 Act restriction from transfer legend. In the event that the Conversion Shares are being sold in a manner that complies with pursuant to an exemption effective registration statement covering the Conversion Shares or are otherwise exempt from registration, the Company will, to the extent such removal is permissible under applicable law as determined by the Company in its reasonable discretion (including, without limitation, based on the advice of the Company’s legal counsel), promptly instruct its counsel to issue to the transfer agent an opinion permitting removal of the legend indefinitely, provided that Subscriber delivers all reasonably requested representations in support of such opinion.
(bii) Pursuant Subscriber will give notice of its decision to exercise its right to convert the Note, interest, any sum due to Subscriber under the Transaction Documents including Liquidated Damages, or part thereof by delivering an executed and completed Notice of Conversion (a form of which is annexed as Exhibit A to the terms Note) to the Company to Section 14(a) of this Agreement. Subscriber will not be required to surrender the Note until the Note has been fully converted or satisfied. Each date on which a Notice of Conversion and the Note, is given to the Company in accordance with the provisions hereof shall (or, if be deemed a Conversion Date. The Company will itself or cause the Company's transfer agent is appointed, shall cause the transfer agent to) to transmit the certificates representing for the Shares to the holder Common Stock issuable upon conversion of the Note to Subscriber via express mail or overnight courier service for receipt by Subscriber within three (i) issuing certificated shares to such holder, or (ii) if a transfer agent is appointed and the holder so elects, by crediting the account of the holder’s designated broker with the Depository Trust Corporation (“DTC”) through its Deposit Withdrawal Agent Commission (“DWAC”) system within seven (73) business days after receipt by the Company of the Notice of Conversion (such third day being the “"Delivery Date”"). In the case of event the exercise of the conversion rights set forth hereinConversion Shares are electronically transferable, the conversion privilege shall be deemed to have been exercised and the Shares issuable upon such conversion shall be deemed to have been issued upon the date of receipt by the Company of the Notice of Conversion in accordance with the requirements of the Note. The holder of the Note shall be treated for all purposes as the beneficial holder of such Shares, or, in the case that Company delivers physical certificates as set forth below, the record holder of such Shares, unless the holder provides the Company written instructions to the contrary. For avoidance of doubt, in the event that Shares cannot be delivered to the Holder via DWAC, (or, if no transfer agent is appointed) the Company shall deliver physical certificates representing the Shares by the Delivery Date to an address designated by the holder.
(c) The Company understands that a delay in the then delivery of the Conversion Shares shall be made by electronic transfer provided request for such electronic transfer has been made by Subscriber and Subscriber has complied with all applicable securities laws in connection with the form required pursuant sale of the Common Stock, including, without limitation, the prospectus delivery requirements. A Note representing the balance of the Note not so converted will be provided by the Company to Section 7.1 hereof later than Subscriber if requested by Subscriber, provided Subscriber delivers the Delivery Date could result in economic loss original Note to the affected SubscriberCompany. In addition the event that a Subscriber elects not to other damages surrender a Note for reissuance upon partial payment or remedies at law conversion, Subscriber hereby indemnifies the Company against any and all loss, damage, liability or expense, including reasonable fees and expenses of counsel, resulting from a third-party claim in an amount in excess of the actual amount then due under the Note or otherwise resulting from the failure of Subscriber to surrender the Note.
(iii) Nothing contained herein or in equity any document referred to which herein or delivered in connection herewith shall be deemed to establish or require the converting Note holder may be entitled, payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event that the Company fails for rate of interest or dividends required to be paid or other charges hereunder exceed the maximum permitted by such law, any reason to effect delivery payments in excess of the Conversion Shares within ten (10) business days after the Delivery Date, such Subscriber will maximum shall be entitled to revoke all or part of the relevant Notice of Conversion credited against amounts owed by delivery of a written notice to such effect to the Company whereupon the Company to Subscriber and such Subscriber shall each be restored to their respective positions immediately prior to the delivery of such notice, except that the liquidated damages described above shall be payable through the date notice of revocation or rescission is given thus refunded to the Company.
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