Conversion. (A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder. (B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date: (1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock; (2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6); (3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market; (4) the Company has failed to timely satisfy its conversion obligations hereunder; or (5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding. (C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 8 contracts
Sources: Debenture Agreement (Phoenix International Industries Inc /Fl/), Debenture Agreement (Phoenix International Industries Inc /Fl/), Debenture Agreement (Phoenix International Industries Inc /Fl/)
Conversion. (Aa) This Debenture Beginning with the earlier of (i) April 10, 2021 and (ii) immediately prior to a liquidation of the Company, each Holder shall be convertible into have the right to convert its shares of Common Stock at the option of the HolderSeries A Preferred Stock, in whole or in part part, at any time and from time to timetime upon the request of such Holder, after the Original Issue Date (subject into that number of whole shares of Common Stock equal to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Series A Preferred Stock to be converted multiplied by the Conversion Rate at such time; provided, however, that in no event shall the Company be obligated to honor such conversion request unless such conversion will involve an aggregate number of shares of Series A Preferred Stock with an underlying value of Common Stock equal to or greater than $20 million, taking into account and including any concurrent conversion requests by any Affiliates of such Holder, based on the Closing Sale Price on the Trading Day immediately preceding the Optional Conversion Notice Date (or a lesser underlying value if such conversion (i) will result in the conversion of all of the shares of Series A Preferred Stock held by such Holder or (ii) has been approved by the Board of Directors); provided, further, that each Holder and such Holder’s Affiliates shall together be entitled to a single conversion right per fiscal quarter. Notwithstanding anything to the contrary in this Section 6(a), if any lender, other creditor or counterparty under any Permitted Loan transaction (including any agent or trustee on their behalf) or any Affiliate of the foregoing exercises any rights or remedies under such Permitted Loan on foreclosure or other exercise of remedies or rights in respect of any pledged shares of Series A Preferred Stock, then such pledged shares of Series A Preferred Stock may be immediately converted by such lender, creditor or counterparty into shares of Common Stock. To convert shares of Series A Preferred Stock into shares of Common Stock pursuant to this Section 6(a), such Holder shall give written notice (the “Optional Conversion Notice” and the date of such notice, the “Optional Conversion Notice Date”) to the Secretary of the Company stating that such Holder elects to so convert shares of Series A Preferred Stock and shall state therein: (A) the number of shares of Series A Preferred Stock to be converted and (B) the name or names in which such Holder wishes the shares of Common Stock to be issued. If a Holder validly delivers an Optional Conversion Notice in accordance with this Section 6(a), the Company shall direct the Transfer Agent to issue the shares of Common Stock no later than two (2) Business Days thereafter (the date of issuance of such shares, the “Optional Conversion Date”).
(b) At any time after April 10, 2021, if the Holders have not elected to convert all of their shares of Series A Preferred Stock pursuant to Section 6(a), the Company shall have the right to cause the outstanding shares of Series A Preferred Stock to be converted, in whole and not in part into that number of whole shares of Common Stock equal to the number of shares of Series A Preferred Stock to be converted multiplied by the Conversion Rate at such time; provided, however, that in order for the Company to exercise such right, (i) the shares of Common Stock must be listed or admitted for trading on a National Securities Exchange, (ii) the Closing Sale Price of the Common Stock must exceed $27.99 for the twenty (20) consecutive Trading Days immediately preceding the Forced Conversion Notice Date, (iii) the average daily trading volume of the shares of Common Stock on the principal National Securities Exchange on which the shares of Common Stock are then listed or admitted to trading must exceed 1,000,000 shares of Common Stock (as such amount may be adjusted to reflect any Common Stock split, combination or similar event) for the twenty (20) consecutive Trading Days immediately preceding the Forced Conversion Notice Date, (iv) the Company must have an effective registration statement on file with the SEC covering resales of the underlying shares of Common Stock to be received by the applicable Holder upon any such conversion and (v) all prior accumulated and unpaid dividends (including, for the avoidance of doubt, Accrued Dividends) have been paid in cash in full. To convert shares of Series A Preferred Stock into shares of Common Stock pursuant to this Section 6(b), the Company shall give written notice (the “Forced Conversion Notice” and the date of such notice, the “Forced Conversion Notice Date”) to each Holder stating that the Company elects to force conversion of such shares of Series A Preferred Stock pursuant to this Section 6(b) and shall state therein (A) the Company elects to so convert shares of Series A Preferred Stock pursuant to this Section 6(b) and (B) the number of shares of Series A Preferred Stock to be converted. If the Company validly delivers a Forced Conversion Notice in accordance with this Section 6(b), the Company shall issue the shares of Common Stock no later than five (5) Business Days thereafter (the date of issuance of such shares, the “Forced Conversion Date”).
(c) Upon conversion, each Holder shall provide the Transfer Agent a written instrument or instruments of transfer in form reasonably satisfactory to the Transfer Agent duly executed by the Holder or its duly authorized legal representative and (ii) transfer tax stamps or funds therefor, if required pursuant to Section 6(i).
(d) Immediately prior to the close of business on the Optional Conversion Date or the Forced Conversion Date, as applicable, with respect to a conversion, a Holder shall be deemed to be the holder of record of Common Stock issuable upon conversion of such Holder’s shares of Series A Preferred Stock notwithstanding that the share register of the Company shall then be closed or that certificates representing such Common Stock shall not then be actually delivered to such Holder. Except to the extent that a Holder is not able to convert its shares of Series A Preferred Stock into Common Stock as a result of the Company not having sufficient authorized capital under its Articles of Incorporation, on the Optional Conversion Date or the Forced Conversion Date, as applicable, dividends shall cease to accrue on the shares of Series A Preferred Stock so converted and all other rights with respect to the shares of Series A Preferred Stock so converted, including the rights, if any, to receive notices, will terminate, except only the rights of Holders thereof to receive the number of whole shares of Common Stock into which such shares of Series A Preferred Stock have been converted. As promptly as practical after the conversion hereunder of any shares of Series A Preferred Stock into shares of Common Stock, the Transfer Agent shall deliver to the applicable Holder an Ownership Notice identifying the number of full shares of Common Stock to which such Holder is entitled.
(e) The Conversion Rate shall be determined by adding subject to the sum of following adjustments (except as provided in Section 6(f)):
(i) If the quotient obtained by dividing Company pays a dividend (xor other distribution) in shares of Common Stock to holders of the outstanding principal amount Common Stock, in their capacity as holders of this Debenture to be converted and (y) Common Stock, then the Conversion Price Rate in effect immediately following the record date for such dividend (as defined herein), and (iior distribution) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to shall be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of following fraction: OS0 where OS0 = the number of shares of Common Stock issuable upon a conversion hereunderoutstanding immediately prior to the record date for such dividend or distribution; and OS1 = the sum of (A) the number of shares of Common Stock outstanding immediately prior to the record date for such dividend or distribution and (B) the total number of shares of Common Stock constituting such dividend.
(Bii) Notwithstanding anything If the Company subdivides or splits the shares of Common Stock into a greater or lesser number of shares of Common Stock, then the Conversion Rate in effect immediately following the effective date of such share subdivision or split shall be divided by the following fraction: OS0 where OS0 = the number of shares of Common Stock outstanding immediately prior to the contrary contained hereineffective date of such share subdivision or split; and OS1 = the number of shares of Common Stock outstanding immediately after the opening of business on the effective date of such share subdivision or split.
(iii) If the Company combines or reclassifies the shares of Common Stock into a greater or lesser number of shares of Common Stock, if then the Conversion Rate in effect immediately following the effective date of such share combination or reclassification shall be divided by the following fraction: OS0 where OS0 = the number of shares of Common Stock outstanding immediately prior to the effective date of such share combination or reclassification; and OS1 = the number of shares of Common Stock outstanding immediately after the opening of business on the effective date of such share combination or reclassification.
(iv) If the Company issues by reclassification of its shares of Common Stock any Equity Interests (including any reclassification in connection with a merger, consolidation or business combination in which the Company is the surviving Person), then the Conversion Date:Rate in effect immediately following the effective date of such reclassification shall be divided by the following fraction: OS0 where OS0 = the number of shares of Common Stock outstanding immediately prior to the effective date of such share issuance by reclassification; and OS1 = the number of shares of Common Stock outstanding immediately after the opening of business on the effective date of such share issuance by reclassification.
(v) In the case the Company effects a Pro Rata Repurchase of Common Stock (in each case other than in connection with a Change of Control) then the Conversion Rate shall be adjusted to the rate determined by multiplying the Conversion Rate in effect immediately prior to the effective date of such Pro Rata Repurchase by a fraction of which the numerator shall be (A) the product of (1) the number of shares of Common Stock at the time authorized, unissued outstanding immediately before such Pro Rata Repurchase and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for Market Value of a share of Common Stock on the trading day immediately preceding the first public announcement by the Company or any of its Affiliates of the intent to effect such conversion Pro Rata Repurchase, minus (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3B) the Common Stock is not listed or quoted for trading on aggregate purchase price of the OTC or on a Subsequent Market;
Pro Rata Repurchase, and of which the denominator shall be the product of (41) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance number of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal outstanding immediately prior to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) Pro Rata Repurchase minus the number of days for which shares of Common Stock so repurchased and (2) the Market Value per share of Common Stock on the trading day immediately preceding the first public announcement by the Company or any of its Affiliates of the intent to effect such principal amount was outstandingPro Rata Repurchase.
(Cvi) This Debenture shall be convertible into Subject to clause (vii) below, if the Company issues to holders of shares of the Common Stock, in their capacity as holders of Common Stock, rights, options or warrants entitling them to subscribe for or purchase shares of Common Stock at less than the option Market Value determined on the Ex-Date for such issuance, then the Conversion Rate in effect immediately following the close of business on the Holder, in whole or in part at any time and from time to time, after the Original Issue Ex-Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, for such issuance shall be irrevocable. Conversions hereunder shall have divided by the effect following fraction: OS0 + X OS0 + Y where OS0 = the number of lowering shares of Common Stock outstanding at the outstanding principal amount close of this Debenture plus all accrued and unpaid interest thereon in an amount equal to business on the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the record date of for such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.issuance;
Appears in 6 contracts
Sources: Preferred Restructuring Agreement (Equitrans Midstream Corp), Preferred Restructuring Agreement (EQM Midstream Partners, LP), Preferred Restructuring Agreement (Equitrans Midstream Corp)
Conversion. (A) This Debenture If the Borrower shall elect to convert any particular Borrowing comprised of Loans denominated in Dollars pursuant to this Section 2.3 from one Type of Loan to the other Type only in part, then, from and after the date on which such conversion shall be convertible into shares effective, such particular Borrowing shall, for all purposes of Common Stock at this Agreement (including, without limitation, for purposes of subsequent application of this sentence), be deemed to instead constitute two Borrowings (each originally advanced on the option same date as such particular Borrowing), one comprised of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on subsequent conversion set forth in Section 4(a)(iiaccordance with this Agreement) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon Eurocurrency Loans in an aggregate principal amount equal to the applicable conversionportion of such Borrowing so elected by the Borrower to be comprised of Eurocurrency Loans and the second comprised of (subject to subsequent conversion in accordance with this Agreement) Base Rate Loans in an aggregate principal amount equal to the portion of such particular Borrowing so elected by the Borrower to be comprised of Base Rate Loans. If the Borrower shall elect to have multiple Interest Periods apply to any particular Borrowing comprised of Eurocurrency Loans denominated in the same currency, which then, from and after the date such multiple Interest Periods commence, such particular Borrowing shall, for all purposes of this Agreement (including, without limitation, for purposes of subsequent application of this sentence), be deemed to constitute a number of separate Borrowings (each originally commencing on the same date as such particular Borrowing) equal to the number of, and corresponding to, the different Interest Periods so selected, each such deemed separate Borrowing corresponding to a particular selected Interest Period comprised of (subject to subsequent conversion in accordance with this Agreement) Eurocurrency Loans in an aggregate principal amount equal to the portion of such particular Borrowing so elected by the Borrower to have such Interest Period. This Section 2.3(f) shall be evidenced by notations made applied appropriately in the Conversion Notice. The Holder and event that the Company Borrower shall maintain records showing make the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative elections described in the absence of manifest errortwo preceding sentences at the same time with respect to the same particular Borrowing.
Appears in 5 contracts
Sources: Credit Agreement (Transocean Partners LLC), Credit Agreement (Transocean Partners LLC), Credit Agreement (Transocean Ltd.)
Conversion. (Aa) Conversion at Option of Holder.
(i) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (as defined in Section 5) (subject to the limitations on conversion set forth in Section 4(a)(ii3(b) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) equals the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and by (y) the Conversion Price (as defined hereinin Section 3(c)(i), and ). The Obligor shall deliver Common Stock certificates to the Holder prior to the Fifth (ii5th) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Trading Day after a Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(Bii) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
: (1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay principal and interest hereunder in shares of Common Stock;
; (2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
; (43) the Company Obligor has failed to timely satisfy its conversion obligations hereunderconversion; or
or (54) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(iiSection 3(b), then, at the Company may not pay interest option of the Holder, the Obligor, in kind and must pay interest in cash by deliveringlieu of delivering shares of Common Stock pursuant to Section 3(a)(i), shall deliver, within three (3) Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on plus any interest due therein divided by the Conversion Price, chosen by the Holder, and multiplied by the highest closing price of the stock from date of the conversion notice till the date that such cash payment is made. Further, if the Obligor shall not have delivered any cash due in respect of conversion of this Debenture or as payment of interest thereon by the fifth (5th) Trading Day after the Conversion Date and (b) Date, the product of (x) Holder may, by notice to the quotient obtained by dividing .12 by 360 and (y) Obligor, require the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into Obligor to issue shares of Common Stock at pursuant to Section 3(c), except that for such purpose the option Conversion Price applicable thereto shall be the lesser of the Holder, in whole or in part at any time Conversion Price on the Conversion Date and from time to time, after the Original Issue Date (Conversion Price on the date of such Holder demand. Any such shares will be subject to the limitations on conversion set forth in Section 4(a)(iiprovisions of this Section.
(iii) hereof). The Holder shall effect conversions by delivering to the Company Obligor a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company Obligor in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company Obligor shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 5 contracts
Sources: Secured Convertible Debenture (Directview Inc), Debenture Agreement (Tech Laboratories Inc), Secured Convertible Debenture (Eyi Industries Inc.)
Conversion. Subject to and in compliance with, the provisions contained herein, the Holder is entitled, at his option, at any time prior to the Maturity Date, or in case this Note or some portion hereof shall have been called for prepayment prior to such date, then, in respect of this Note or such portion hereof, until and including, but not after, the close of business within 30 days of the date of notice of prepayment, to convert the original principal amount of this Note (Aor any portion thereof), together with accrued but unpaid interest thereon, into fully paid and nonassessable shares (calculated as to each conversion to the nearest share) This Debenture of common stock (the “Shares”) of the Borrower by surrender of this Note, duly endorsed (if so required by the Borrower) or assigned to the Borrower or in blank, to “PSM Holdings, Inc.” at its offices, accompanied by written notice to the Borrower, in the form set forth below, that the holder hereof selects to convert this Note or, if less than the entire principal amount hereof is to be converted, the portion hereof to be converted. Such conversion shall be convertible into shares effected at the per share rate of Common Stock at sold pursuant to a Qualified Offering by the option Borrower. For purposes of this Section 4, the term “Qualified Offering” shall mean one or more offerings (whether or not proceeds are received by the Borrower pursuant to such offering) of debt or equity securities of the Holder, Borrower to non-affiliates in whole or in part the aggregate amount of at any time and from time to time, least $1,000,000 commenced after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof)Issuance Date. The number of shares of Common Stock issuable upon a conversion hereunder price shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation lowest of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposesoffering price per common share, or held as treasury the conversion or exercise price for common stock, is insufficient to pay interest hereunder in shares any such Qualified Offering. No fractions of Common Stock;
(2) the Underlying Shares issuable for such conversion (including will be issued on conversion, but instead of any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), thenfractional interest, the Company may not Maker will pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingadjustments as provided herein.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 4 contracts
Sources: Convertible Promissory Note (PSM Holdings Inc), Convertible Promissory Note (PSM Holdings Inc), Convertible Promissory Note (PSM Holdings Inc)
Conversion. (ANotwithstanding any covenants in this Agreement requiring Cartus, CFC or ARSC to maintain its “corporate existence”, such entity may elect to convert their status from that of a Delaware corporation to that of a Delaware limited liability company, either by filing a certificate of conversion with the Delaware Secretary of State or by merging with and into a newly formed Delaware limited liability company(such conversion or merger, as applicable, being herein called a “Conversion”) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(iiconditions that:
(a) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount Person formed by such Conversion (any such Person, the “Surviving Entity”) is an entity organized and existing under the laws of this Debenture the United States of America or any State thereof, (y) such Surviving Entity expressly assumes, by an agreement in form and substance satisfactory to be converted the applicable transferee and its assignees, performance of every covenant and obligation of such Person under the Transaction Documents to which such Person is a party and (z) such Surviving Entity delivers to the other parties to the Fifth Omnibus Amendment hereto dated as of April 10, 2007 (such parties, the “Amendment Parties”) an opinion of counsel that such Surviving Entity is duly organized and validly existing under the laws of its organization, has duly executed and delivered such supplemental agreement, and such supplemental agreement is a valid and binding obligation of such Surviving Entity, enforceable against such Surviving Entity in accordance with its terms (subject to customary exceptions relating to bankruptcy and equitable principles) and covering such other matters as the Amendment Parties may reasonably request;
(b) all actions necessary to maintain the perfection of the security interests or ownership interests created by such Person under the Transaction Documents to which such Person is a party in connection with such Conversion shall have been taken, as evidenced by an opinion of counsel reasonably satisfactory to the Amendment Parties;
(c) so long as such Person is the Servicer, no Servicer Default or Unmatured Servicer Default is then occurring or would result from such Conversion;
(d) in the case of a Conversion of CFC or ARSC, (x) the organizational documents of any Surviving Entity with respect to CFC or ARSC shall contain limitations on its business activities and requirements for independent directors or managers substantially equivalent to those set forth in its current organizational documents, and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ shall have timely elected to pay the interest due on a Conversion Date in cash pursuant delivered an opinion of counsel reasonably satisfactory to the terms hereofAmendment Parties that such Conversion will not, subsection in and of itself, alter the conclusions set forth in its opinions previously issued in connection with the Transaction Documents with respect to true sale matters, substantive consolidation matters and bankruptcy issues relating to “home sale proceeds” (iito the extent such opinions relate to such Person); and
(e) each Amendment Party shall not have received such other documents as such Amendment Party may reasonably request. In connection with any such Conversion and the resulting change in name of such entity, Cartus, CFC and/or ARSC, as applicable, shall be used required to comply with the name change covenants in the calculation Transaction Documents, except that to the extent 30 days prior written notice of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything name change is required, such notice period shall be reduced to five Business Days. From and after any such Conversion effected in compliance with the contrary contained hereinabove conditions, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) all references in the outstanding principal amount of the Debentures Transaction Documents to any Person which has altered its corporate structure to become a limited liability company shall be deemed to be converted on references to the Surviving Entity as successor to such Conversion Date and Person, (b) all representations, warranties and covenants in the product Transaction Documents which state that any of Cartus, CFC or ARSC is or is required to be a corporation shall be deemed to permit and require the Surviving Entity to be a limited liability company, (xc) all references to such Person’s certificate of incorporation, other organizational documents, capital stock, corporate action or other matters relating to its corporate form will be deemed to be references to the quotient obtained by dividing .12 by 360 organizational documents and analogous matters relating to limited liability companies, (d) all references to such Person’s directors or independent directors will be deemed to be references to the Surviving Entity’s directors, independent directors, managers or independent managers, as the case may be and (ye) the number of days for which such principal amount was outstanding.
(C) This Debenture no representation, warranty or covenant in any Transaction Document shall be convertible into shares of Common Stock at the option deemed to be breached or violated solely as a result of the Holderfact that the Surviving Entity in any Conversion may be disregarded as a separate entity for state, in whole local or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Datefederal income tax purposes." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 4 contracts
Sources: Seventh Omnibus Amendment (Compass, Inc.), Omnibus Amendment (Domus Holdings Corp), Omnibus Amendment (NRT Settlement Services of Missouri LLC)
Conversion. (Aa) This Debenture shall be convertible into shares of Common Stock at the option Upon termination of the HolderMerger Agreement pursuant to Sections 8.2(d), in whole 8.3(a) or in part at any time 8.3(b) thereof (the "Conversion Date"), all Loans and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder Obligations shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to automatically be converted and (ythe "Conversion") the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of into the number of shares of Common Stock issuable upon a conversion hereunderof Borrower equal to the aggregate amount of the Loans and Obligations (without duplication) then outstanding, divided by the Exchange Ratio calculated as of the Conversion Date, as such Exchange Ratio may have been adjusted pursuant to the terms of the Merger Agreement.
(Bb) Notwithstanding anything The Conversion shall be deemed to have been made immediately before the contrary contained herein, if close of business on any the Conversion Date:
, so that the rights of Lender under this Agreement and the Security Agreement shall cease at such time (1other than those rights that expressly survive the termination of this Agreement) and Lender shall be treated for all purposes as having become the record holder or holders of the Common Stock described in Section 3.6(a) at such time, and the number of shares of Common Stock to be received by Lender shall be determined at such time.
(c) Borrower covenants that it will at all times reserve and keep available out of its authorized Common Stock, solely for the time authorizedpurpose of issuance upon conversion of the Loans and Obligations as herein provided, unissued such number of shares of Common Stock as shall be issuable upon the conversion of the entire Commitment. Borrower covenants that all shares of Common Stock which shall be so issuable shall be duly and unreserved validly issued and fully-paid and non-assessable.
(d) Borrower covenants that if any shares of Common Stock required to be reserved for all purposesissuance upon conversion of the Loans and Obligations require registration with or approval of any Governmental Authority under any federal or state law before such shares may be issued upon conversion, Borrower will, at its expense and as expeditiously as possible, cause such shares to be duly registered or approved, as the case may be.
(e) The issuance of certificates for shares of Common Stock upon the Conversion shall be made within one (1) Business Day of the Conversion Date without charge to Lender for any tax in respect of the issuance of such certificates, and such certificates shall be issued in the respective names of, or held in such names as treasury stockmay be directed by, is insufficient to pay interest hereunder in the holder of this Term Note.
(f) To the extent that the Loans and Obligations are not converted into shares of Common Stock;
(2) the Underlying Shares issuable for , such conversion (including any interest portion shall remain a secured debt of Borrower payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under accordance with the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount terms of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.Agreement
Appears in 4 contracts
Sources: Credit Agreement (Divine Inc), Credit Agreement (Divine Inc), Credit Agreement (Open Market Inc)
Conversion. (i) Conversion at Option of Holder.
(A) This Debenture shall ------------------------------ be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding equals the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and by (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if -------- the Company Holder shall have timely elected to pay receive the interest due on a Conversion Date in cash pursuant to the terms hereofcash, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a --------- "Conversion Notice") including a completed Conversion Schedule in the form of ----------------- Schedule 1 to the Conversion Notice (on each Conversion Date, the "Conversion ---------- ---------- Schedule"). The Conversion Notice Schedule shall set forth the remaining principal -------- amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal --------------- amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made entries set forth in the Conversion NoticeSchedule. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 4 contracts
Sources: Debenture Agreement (Aquatic Cellulose International Corp), Debenture Agreement (Aquatic Cellulose International Corp), Debenture Agreement (Aquatic Cellulose International Corp)
Conversion. (A) This Debenture shall Warrant may be convertible into shares of Common Stock at converted by the option of the Holderholder hereof, in whole or in part at part, into shares of Class A Common Stock, during normal business hours on any time and from time to time, after the Original Issue Date (subject Business Day on or prior to the limitations on conversion set forth in Expiration Date, by surrender of this Warrant to the Company at its office maintained pursuant to Section 4(a)(ii13.2(a) hereof). The , accompanied by a conversion notice in substantially the form attached to this Warrant (or a reasonable facsimile thereof) duly executed by such holder, and such holder shall thereupon be entitled to receive a number of duly authorized, validly issued, fully paid and nonassessable shares of Class A Common Stock issuable upon a conversion hereunder shall be determined by adding equal to the quotient of:
(i) the excess of:
(A) an amount equal to the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1aa) the number of shares of Class A Common Stock at determined as provided in Section 2 hereof which such holder would be entitled to receive upon exercise of this Warrant for the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in number of shares of Class A Common Stock;
Stock designated in such conversion notice multiplied by (2bb) the Underlying Shares issuable for Current Market Price of each such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the share of Class A Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 so designated and (y) the Current Market Price of any Other Securities and the fair value of any other property (determined in good faith by the Board of Directors of the Company) such holder would be entitled to receive upon exercise of this Warrant for the number of days for which shares of Class A Common Stock designated in such principal amount was outstanding.conversion notice
(CB) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to (x) the applicable conversionnumber of shares of Class A Common Stock (without giving effect to any adjustment thereof) designated in such conversion notice multiplied by (y) the Exercise Price
(ii) such Current Market Price of a share of Class A Common Stock. For all purposes of this Warrant (other than this Section 3.1), which any reference herein to the exercise of this Warrant shall be evidenced by notations made deemed to include a reference to the conversion of this Warrant into Class A Common Stock in accordance with the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date terms of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorthis Section 3.1(b).
Appears in 4 contracts
Sources: Warrant Agreement (Kenexa Corp), Warrant Agreement (Kenexa Corp), Warrant Agreement (Kenexa Corp)
Conversion. (a) Subject to the Ownership Cap, the Holder may, at its election, upon surrender (either in person, by mail (postage prepaid) or other means of delivery) of this Debenture along with a completed notice of conversion in the form attached hereto as Schedule "A" (the "Conversion Notice") This Debenture shall be convertible into shares of Common Stock at the option principal office of the HolderCompany in Toronto, in whole or in part Ontario at any time and from time to time, after time following the Original Issue Date (subject and prior to the limitations close of business on conversion set forth the Maturity Date, convert all or portions of the outstanding Principal Sum from time to time (the "Conversion Date") at the Conversion Price ("Holder Conversion"), in Section 4(a)(ii) hereofincrements of $1,000.00, unless there is less than $1,000.00 of the Principal Sum then outstanding (in which case the balance of the outstanding Principal Sum shall be convertible). The delivery of the Conversion Notice duly executed by the Holder and the surrender of this Debenture shall be deemed to constitute a valid and enforceable contract between the Holder and the Company whereby (i) the Holder subscribes for the number of shares Common Shares which the Holder shall be entitled to receive upon such Holder Conversion, (ii) the Holder releases the Company from all liability thereon or from all liability with respect to the portion of the Principal Sum converted, as the case may be, and (iii) the Company agrees that the surrender of this Debenture for Holder Conversion constitutes full payment of the subscription price for the Common Shares issuable on such Holder Conversion. To effect conversions hereunder, the Holder shall be required to physically surrender the Debenture to the Company.
(b) As promptly as possible after receipt of the Conversion Notice and this Debenture, but subject to Section 4.5 hereof, the Company shall issue or cause to be issued a certificate, direct registration statement or entry into the CDS system in the name or names of the person or persons specified in the Conversion Notice for that number of Common Stock Shares deliverable upon the Holder Conversion.
(c) If converted prior to the date that is 4 months and a day after the date hereof, the Holder acknowledges and agrees that a legend may be placed on the certificates, DRS Statements or CDS Position representing the Common Shares to the effect that the securities represented by such certificates, DRS Statements or CDS Position are subject to a hold period and may not be traded until the expiry of such hold period except as permitted by applicable securities legislation.
(d) The number of Conversion Shares issuable upon a any conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) by (y) where (x) is equal to the aggregate amount of the outstanding principal amount of this Debenture Principal Sum to be converted as of the Conversion Date and (y) is the Conversion Price Price.
(as defined herein)e) Upon completion of the Holder Conversion, and (ii) the rights of the Holder to receive, in respect of the amount equal hereof so converted, the portion of the Principal Sum so converted shall cease and the Holder or the other person or persons in whose name or names any Common Shares shall be issuable upon such Holder Conversion shall be deemed to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price have become on the Conversion Date, provided, that if Date the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation holder or holders of the number record of shares of such Common Stock issuable upon a conversion hereunderShares represented thereby.
(Bf) Notwithstanding anything to In the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on event that only a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount portion of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (Principal Sum is subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this DebentureConversion, the Holder is will be entitled to receive a replacement Debenture representing the Principal Sum not be required subject to physically surrender this Debenture to Holder Conversion on the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued same terms and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorprovisions contained herein.
Appears in 3 contracts
Sources: Securities Purchase Agreement (SOL Strategies Inc.), Securities Purchase Agreement (SOL Strategies Inc.), Securities Purchase Agreement (SOL Strategies Inc.)
Conversion. (Ai) This At any time after the Original Issue Date until this Debenture is no longer outstanding, this Debenture, including interest and principal, shall be convertible into shares of Common Stock ("Shares") at a price of eighty percent (80%) of the average of the five lowest volume weighted average prices ("VWAPs"), determined on the then current trading market for the Company's common stock, for ten (10) trading days prior to conversion (the "Set Price" and the "Pricing Period"), at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form of Notice of Conversion attached hereto as Exhibit Annex A (a "Notice of Conversion"), specifying the date on which such conversion (each a "Conversion") is to be effected (a "Conversion NoticeDate"). The If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall set forth be the remaining principal amount date that such Notice of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issueConversion is provided hereunder. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this DebentureTo effect conversions hereunder, the Holder is shall not be required to physically surrender this Debenture Debentures to the Company. The Company in order shall deliver any objection to effect conversionsany Notice of Conversion within five (5) Business Days of receipt of such notice. Subject to Section 4(b)The Holder and any assignee, each Conversion Noticeby acceptance of this Debenture, once givenacknowledge and agree that, shall be irrevocable. Conversions hereunder shall have by reason of the effect provisions of lowering this paragraph, following conversion of a portion of this Debenture, the outstanding unpaid and unconverted principal amount of this Debenture plus all accrued and unpaid interest thereon in an may be less than the amount equal stated on the face hereof. Any disagreement as to the applicable Set Price, Pricing Period, Shares due or any other issues relating to this Note shall be settled in accordance with the Dispute Resolution Procedures described below.
ii) Shares from any such conversion delivered to Company by 4:00 pm EST will be delivered to Holder by 2:30 pm EST within five (5) business days of conversion notice delivery (see 4(i)). If those shares are not delivered in accordance with this timeframe stated in this Section 4(ii), at any time for any reason prior to offering those shares for sale in a private transaction or in the public market through its broker, Holder may rescind that particular conversion to have the conversion amount returned to the note balance with the conversion shares returned to the Borrower. The Company will make its commercially reasonable best efforts to deliver shares to Holder same day I next day. For each conversion, which shall be evidenced by notations made in the event that shares are not delivered by the third business day (inclusive of the day of the conversion), a penalty of $2,000 per day will be assessed for each day after the third business day (exclusive of the day of the conversion) until share delivery is made. Any such penalty will be added to the principal balance of the Note, under Holders expectation that any penalty amounts will tack back to the original date of the note).
iii) The applicable portion of this Note shall not be convertible during any time that, and only to the extent that, the number of Shares to be issued to Holder upon such Conversion, when added to the number of shares of Common Stock, if any, that the Holder otherwise beneficially owns (outside of this Note, and not including any other securities of the Company held by Holder having a provision substantially similar to this paragraph) at the time of such Conversion, would exceed 4.99% (the “Maximum Percentage”) of the number of shares of Common Stock of the Company outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon Conversion Noticeof this Note held by the Holder, as determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Beneficial Ownership Limitation”). The Holder and Beneficial Ownership Limitation provisions of this Section 4(iii) may be waived by ▇▇▇▇▇▇, at the Company shall maintain records showing the principal amount converted and the date election of such conversions. In Holder, upon not less than sixty-one (61) days prior written notice to the event of Company, to change the Beneficial Ownership Limitation to any dispute or discrepancy, the records other percentage of the Holder number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon Conversion of the Note held by the Holder. The provisions of this paragraph shall not be controlling construed and determinative implemented in a manner otherwise than in strict conformity with the absence terms of manifest errorthis Section 4(iii) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation.
Appears in 3 contracts
Sources: Securities Agreement (Allezoe Medical Holdings Inc), Securities Agreement (Allezoe Medical Holdings Inc), Securities Agreement (Allezoe Medical Holdings Inc)
Conversion. (Aa) This Debenture After the Issue Date, the Holder shall be convertible into shares of Common Stock at have the option of right (the Holder"CONVERSION RIGHT"), in whole or in part at any time and from time to time, after on the Original Issue Date (subject to the limitations on conversion terms set forth in this Section 4(a)(ii3, to convert the principal amount of this Note and the accrued but unpaid interest thereon into Common Stock on the terms and conditions hereinafter set forth.
(b) hereof)Holder may exercise such Conversion Right by delivery to the Company of a written notice of conversion not less than three (3) Business Days prior to the date upon which such conversion shall occur. The date upon which such conversion shall occur is the conversion date ("CONVERSION DATE").
(c) Notwithstanding anything contained herein to the contrary, pursuant to the terms of this Note, the Holder shall not be entitled to convert this Note into that number of shares of Common Stock issuable upon a conversion hereunder shall which would be determined by adding in excess of the sum of (i) the quotient obtained number of shares of Common Stock actually owned by dividing (x) the outstanding principal amount of this Debenture to be converted Holder and (y) the Conversion Price (as defined herein), its affiliates and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a the conversion hereunderof this Note held by such Holder and its affiliates with respect to which the determination of this proviso is being made which would result in beneficial ownership by the Holder and its affiliates of more than 9.99% of the outstanding shares of Common Stock of the Company. For the purposes of the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and Regulation 13d-3 thereunder.
(Bd) Notwithstanding anything In the event that the Holder elects to convert all or any portion of this Note into Common Stock, the Holder shall give written notice of such election by delivering to the contrary contained hereinCompany an executed and completed notice of conversion (the "NOTICE OF CONVERSION"), if on any such Notice of Conversion shall provide a breakdown in reasonable detail of the Principal Amount, accrued interest and fees being converted. On each Conversion Date (as hereinafter defined) and in accordance with the Notice of Conversion, the Holder shall make the appropriate reduction to the Principal Amount, accrued interest and fees as entered in its records and shall provide written notice thereof to the Company within two (2) Business Days after the Conversion Date:. Each date on which a Notice of Conversion is delivered or telecopied to the Company in accordance with the provisions hereof shall be deemed, for all purposes of this Note, to be the Conversion Date. Pursuant to the terms of the Notice of Conversion, the Company will issue instructions to the transfer agent (together with such other documents as the transfer agent may request) within two (2) Business Days of the date of the delivery to Company of the Notice of Conversion. The Company shall use its best efforts to cause its transfer agent to transmit the certificates representing the Common Stock issuable upon full or partial conversion of this Note to any address or depositary directed by the Holder within five (5) Business Days after receipt by the Company of the Notice of Conversion.
(1e) the The number of shares of Common Stock at to be issued upon any conversion of this Note (the time authorized"CONVERSION SHARES") shall be determined by dividing that portion of the principal, unissued interest and unreserved for all purposesfees to be converted, or held as treasury stockif any, is insufficient to pay interest hereunder in shares of Common Stock;
by forty cents (2) the Underlying Shares issuable for such conversion (including any interest payable in shares$0.40) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6"CONVERSION PRICE");
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(Cf) This Debenture shall The Conversion Price and number and kind of shares or other securities to be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and issued upon conversion is subject to adjustment from time to timetime upon the occurrence of certain events, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.follows:
Appears in 3 contracts
Sources: Securities Agreement (Utix Group Inc), Securities Agreement (Utix Group Inc), Securities Agreement (Utix Group Inc)
Conversion. (Aa) This Debenture Subject to Section D(4)(b) of this Article 3, each share of Non-Voting Common Stock shall be convertible converted into one share of Common Stock (i) automatically, upon the permitted Transfer (as hereinafter defined) of such share of Non-Voting Common Stock, or (ii) at the election of the holder of such share of Non-Voting Common Stock. Each conversion of shares of Non-Voting Common Stock into shares of Common Stock at shall be effected by the option surrender of the Holdercertificate(s) evidencing book entry on the books and records of the Corporation’s transfer agent.
(b) Notwithstanding Section D(4)(a) of this Article 3, no share of Non-Voting Common Stock shall be converted into Common Stock if, as a result of such conversion, the holder of such share of Common Stock would (or would be deemed to), directly or indirectly, own, control or have power to vote more than 9.9% of any class of the Corporation’s voting securities. If the Board of Directors of the Corporation determines in whole or in part at any time good faith, which determination shall be final and from time to time, after the Original Issue Date binding:
(subject i) prior to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number issuance of shares of Common Stock issuable upon a on conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Non-Voting Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) that the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), thenthe ownership limitation contained in this Section (D)(4)(b) of this Article 3, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days Board of each applicable Conversion Date, an amount in cash equal Directors shall be entitled to the product of (a) the outstanding principal amount of the Debentures refuse to be converted issue on such Conversion Date and (b) conversion the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at that would cause the option violation of such ownership limitation; and
(ii) after the issuance of shares of Common Stock on conversion of Non-Voting Common Stock that the issuance of such shares of Common Stock has resulted in a violation of the Holderownership limitation contained in this Section (D)(4)(b) of this Article 3, in whole or in part at any time and from time to time, after the Original Issue Date (subject Board of Director of the Corporation shall rescind such conversion to the limitations extent it caused such violation, cancel the shares of Common Stock issued on conversion set forth that caused such violation and re-issue in respect of such canceled shares of Common Stock the shares of Non-Voting Common Stock that were canceled on conversion.
(c) At least 15 calendar days before the record date for the annual meeting of holders of Common Stock, the Corporation shall provide to holders of Non-Voting Common Stock the total number of shares of the Corporation’s voting securities issued and outstanding as of a recent date.
(d) Upon the issuance of the shares of Common Stock converted in accordance with this Section 4(a)(iiD(4) hereof)of this Article 3, such shares shall be deemed to be duly authorized, validly issued, fully paid and nonassessable, and shall be free and clear of all liens, claims, security interests, charges and other encumbrances other than restrictions on transfer arising under federal and state securities laws. When shares of Non-Voting Common Stock have been converted in accordance with this Section D(4) of this Article 3, they shall be canceled and become authorized but unissued shares of Non-Voting Common Stock.
(e) The Holder issuance of shares of Common Stock upon conversion of shares of Non-Voting Common Stock shall effect conversions by delivering be made without charge to the Company a completed notice substantially holders of such shares for any issue tax in respect thereof or other cost incurred by the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this DebentureCorporation in connection with such conversion; provided, however, the Holder is Corporation shall not be required to physically surrender pay any tax that may be payable in respect of any transfer involved in the issuance of shares of Common Stock to a person other than the holder of the Non-Voting Common Stock converted.
(f) As used in this Debenture to Section D(4) of this Article 3, the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder following terms shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal meaning ascribed to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.them below:
Appears in 2 contracts
Sources: Investment Agreement (WashingtonFirst Bankshares, Inc.), Investment Agreement (WashingtonFirst Bankshares, Inc.)
Conversion. (A1) This Debenture shall be convertible into shares Subject to receiving all required regulatory approvals, the Holder may, at its election, upon surrender (either in person, by mail (postage prepaid) or other means of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(iidelivery) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company along with a completed notice substantially of conversion (the “Conversion Notice”) in the form attached hereto as Exhibit A Schedule “B” at the principal office of the Company in the City of Vancouver, British Columbia at any time prior 5:00 p.m. (Vancouver Time) on the last Business Day immediately preceding the Maturity Date (“Holder Conversion”), convert all or a "portion of the then outstanding Principal Sum (including any payment of interest thereon in accordance with Section 3.02), from time to time on or prior to the Maturity Date, at the Conversion Notice")Price. The delivery of the Conversion Notice shall set forth duly executed by the remaining principal amount Holder and the surrender of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have deemed to constitute a contract between the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing whereby (i) the principal amount converted and Holder subscribes for the date number of such conversions. In the event of any dispute or discrepancy, the records of Common Shares which the Holder shall be controlling entitled to receive upon such Holder Conversion, (ii) the Holder releases the Company from all liability thereon or from all liability with respect to the portion of the Principal Sum converted, as the case may be, and determinative (iii) the Company agrees that the surrender of this Debenture for Holder Conversion constitutes full payment of the subscription price for the Common Shares issuable on such Holder Conversion.
(2) As promptly as possible after receipt of the Conversion Notice and this Debenture, but subject to Section 4.03 hereto, the Company shall issue or cause to be issued and deliver or cause to be delivered to the Holder a certificate in the absence name of manifest errorthe Holder for the number of Common Shares deliverable upon the Holder Conversion. Upon completion of the conversion transaction, the rights of the Holder to receive, in respect of the amount hereof so converted, the Principal Sum shall cease and the Holder shall be deemed to have become on such date the holder of record of such Common Shares represented thereby.
(3) In the event that only a portion of the Principal Sum is subject to Holder Conversion, the Holder will be entitled to receive a replacement Debenture representing the Principal Sum not subject to Holder Conversion on the same terms and provisions contained herein.
Appears in 2 contracts
Sources: Omnibus Debt Restructuring Agreement, Omnibus Debt Restructuring Agreement
Conversion. (A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained hereinin this Section 10, if on any Conversion Date:
(1) the number each Holder of shares of Preferred Stock to be redeemed by the Corporation may elect to convert all or any portion of the shares of Preferred Stock held by such Holder into Common Stock in accordance with the provisions of Section 6 (taking into account the limitation in the last sentence of Section 6(a)(i)(B) and any contingencies contemplated by Section 10(e)) at any time prior to the time authorizedRedemption Date, unissued and unreserved which election, for all purposesthe avoidance of doubt, may be made subject to the same or similar contingencies to which any such redemption by the Corporation is made subject. Without limiting the generality of the foregoing, in the event that any such conversion is being effected in connection with, or held as treasury stockpart of a Change of Control or any redemption by the Corporation in accordance with this Section 10 is otherwise made conditional on another event or happening (or the absence of any event or happening), is insufficient the Holder may condition such conversion on the effectiveness of such Change of Control (or such earlier time as the consideration payable to pay interest hereunder in shares holders of Common Stock;
Stock in respect of such Change of Control is determined) or such other event or happening (2) or the Underlying Shares issuable for absence of such event or happening), in which case such conversion (including shall be deemed effective as of immediately prior to any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance such redemption of such shares shares; provided that if such conversion in connection with any such redemption of Common the Preferred Stock would result in the issuance of any Excess Conversion Shares, such election to convert, solely with respect to such Excess Conversion Shares, shall be deemed an election by such Holder to (x) in the case of a violation Change of Sections 4(a)(ii)Control, thenreceive, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days upon consummation of each applicable Conversion Datesuch Change of Control, an amount in cash equal to the product aggregate amount such Holder would have received had all such Excess Conversion Shares converted into Common Stock and such Holder received in respect of the shares of Common Stock issuable upon such conversion (aincluding for all purposes of this proviso Excess Conversion Shares and disregarding the limitation in the last sentence of Section 6(a)(i)(B)) the outstanding principal amount aggregate consideration payable to such holder in respect of the Debentures to be converted on all such Conversion Date and (b) the product shares of (x) the quotient obtained by dividing .12 by 360 Common Stock so issuable upon conversion and (y) the number in connection with any redemption that is not a Change of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock Control Redemption, at the option of the HolderCorporation, in whole or in part at any time either (i) receive the greater of (A) the Redemption Price and from time to time, after (B) the Original Issue Common Stock Trading Price on the last Trading Day preceding the Redemption Date (subject to multiplied by the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to Excess Conversion Shares into which Preferred Stock would have converted but for the Company a completed notice substantially limitation in the form attached hereto as Exhibit A last sentence of Section 6(a)(i)(B) or (ii) continue to hold such Preferred Stock which would have converted into Common Stock but for the limitation in the last sentence of Section 6(a)(i)(B), with the Corporation having no right to redeem such Preferred Stock until the earlier of (I) a "Conversion Notice"). The Conversion Notice shall set forth Change of Control (in which case, upon election to redeem by the remaining principal amount of this Debenture Corporation, the foregoing clause (x) would apply) and all accrued and unpaid interest thereon subsequent to (II) a time at which the conversion at issue. The date on which a Conversion Notice is delivered is limitation in the "Conversion Date." Unless last sentence of Section 6(a)(i)(B) would not be applicable to limit any conversion by the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records such remaining shares of the Holder shall be controlling and determinative in the absence of manifest errorPreferred Stock.
Appears in 2 contracts
Sources: Registration Rights Agreement (Resideo Technologies, Inc.), Investment Agreement (Resideo Technologies, Inc.)
Conversion. A Holder of a Debenture may, subject to the terms and conditions of Article 5 of the Indenture, convert the principal amount of such Debenture (Aor any portion thereof equal to $1,000 or any integral multiple of $1,000 in excess thereof) This Debenture shall be convertible into shares of Common Stock at any time prior to the option close of business on the Business Day immediately preceding November 15, 2023 under the circumstances described in Article 5 of the HolderIndenture. On conversion of a Debenture, that portion of accrued and unpaid interest, including Contingent Interest, if any, on the converted Debenture attributable to the period from the most recent Interest Payment Date (or, if no Interest Payment Date has occurred, from November 10, 2003) through the date of conversion, and Tax Original Issue Discount accrued through the date of conversion with respect to the converted Debenture shall not be cancelled, extinguished or forfeited, but rather shall be deemed to be paid in full to the Holder thereof through delivery of the Common Stock (together with the Cash payment, if any, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number lieu of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined hereinfractional shares), and (ii) in exchange for the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be being converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms provisions hereof, subsection (ii) shall not be used in and the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance fair market value of such shares of Common Stock would result (together with any such Cash payment in a violation lieu of Sections 4(a)(iifractional shares) shall be treated as issued, to the extent thereof, first in exchange for accrued and unpaid interest (including Contingent Interest, if any), thenand Tax Original Issue Discount accrued through the date of conversion and the balance, if any, of such fair market value of such Common Stock (and any such Cash payment) shall be treated as issued in exchange for the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures Debenture being converted pursuant to be converted on such Conversion Date the provisions hereof. The Company agrees, and (b) the product each Holder and any beneficial owner of (x) the quotient obtained a Debenture by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture its purchase or acceptance thereof shall be convertible into shares deemed to agree, to treat, for United States federal income tax purposes, the fair market value of the Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to received upon the conversion at issue. The date of a Debenture (together with any Cash payment in lieu of fractional shares) as a contingent payment on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to for purposes of Treasury Regulation Section 1.1275-4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Conversion. (A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the The outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture Principal and all accrued and unpaid interest thereon subsequent Interest on the Note may be converted into Securities pursuant to the terms set forth in Section 4.1(b) below (each, a “Conversion”).
(b) Unless otherwise agreed to in writing by the parties, the outstanding Principal and accrued and unpaid Interest on the Note shall automatically be subject to a Conversion into Securities as soon as the Qualifying Transaction occurs as stated in the Plan of Arrangement approved by the Definitive Agreement without any other further action required on the part of the Purchaser and the Note shall be deemed to be surrendered for conversion at issue. The date on which a such time for purposes of Section 4.1(d).
(c) Each Conversion Notice is delivered is under the "Conversion Date." Unless Note shall be effected in accordance with the Holder is converting following:
(i) the entire principal amount outstanding under this Debenture, Principal and accrued and unpaid interest of the Holder is not Note to be required to physically surrender this Debenture converted shall be converted in full into such number of Securities equal to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have quotient of:
(A) the effect product of:
(I) the aggregate of lowering all of the Principal outstanding principal amount of this Debenture plus and all accrued and unpaid interest thereon in Interest, multiplied by
(II) an amount equal to Company Value divided by the applicable conversionValuation Cap, which divided by,
(B) USD $10.00.
(d) For the purposes hereof, the Note shall be evidenced by notations made deemed to be surrendered for conversion on the day that the Purchaser delivers the Conversion Notice and the surrendered Note to the Corporation, or if the Note is automatically converted pursuant to Section 0, the date on which such automatic Conversion occurs in accordance therewith (in each case, the “Date of Conversion”).
(e) From and after the Date of Conversion, the Purchaser shall be entitled to be entered in the Conversion Noticebooks of the Corporation as the holder of the number of Securities into which the Note is convertible in accordance with the Section 4.1(a), and, as soon as practicable thereafter (and in any event, within five (5) Business Days), the Corporation shall deliver to the Purchaser a certificate or certificates for such Securities. The Holder and certificates representing the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records Securities to be issued upon conversion of the Holder Note shall bear such restrictive or other legends as may be controlling required by applicable laws.
(f) The Securities issued upon conversion shall rank pari passu in respect of dividends declared in favour of Purchaser on and determinative in after the absence Date of manifest errorConversion, from which applicable date they will for all purposes be and be deemed to be issued and outstanding as fully paid and non-assessable Securities.
Appears in 2 contracts
Sources: Note Purchase Agreement (Borealis Foods Inc.), Note Purchase Agreement (Borealis Foods Inc.)
Conversion. (Aa) This Debenture At any time during the period commencing on October 1, 2011 and ending on the Maturity Date, at the option and upon the written election of the Company in accordance with Section 4(c) hereof, the outstanding principal and accrued but unpaid interest on this Note may be converted into Common Stock at a conversion price equal to $.05 per share. Upon such conversion, the Company shall be convertible into issue to the Holder a stock certificate representing the shares of Common Stock at the option of the Holder, in whole or in part at any time and from time issued pursuant to time, after the Original Issue Date (subject to the limitations on conversion set forth in this Section 4(a)(ii) hereof4(a). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, ; provided, however, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything obligated to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in issue certificates evidencing such shares of Common Stock;, issued pursuant to this Section 4(a) unless this Note is delivered to the Company for cancellation, or the Holder notifies the Company that this Note has been lost, stolen or destroyed and executes an agreement reasonably satisfactory to the Company to indemnify the Company for any loss incurred by it in connection with the loss, theft or destruction of this Note.
(2b) the Underlying Shares issuable for such No fractional shares shall be issued upon any conversion (including any interest payable in shares) (x) are not registered for resale of this Note into Common Stock, as applicable, pursuant to an effective Underlying Shares Registration Statement and (ySection 4(a) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares hereof. If any fractional share of Common Stock Stock, as applicable, would result in a violation of Sections 4(a)(ii), thenbe delivered upon such conversion, the Company may not Company, in lieu of delivering such fractional share, shall pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, to the Holder an amount in cash equal to the product of (a) the outstanding principal amount allocable portion of the Debentures to be converted on price per share of such Conversion Date and (b) the product fractional share of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into Common Stock. The Company covenants that all shares of Common Stock issued pursuant to Section 4(a) hereof will be duly and validly issued and fully paid and nonassessable, and free from all taxes, liens and charges with respect to the issue thereof.
(c) In order to exercise its election to convert the outstanding principal and accrued but unpaid interest on this Note into Common Stock, the Company shall provide written notice to the Holder of its election (if Company so elects) to convert the outstanding principal and accrued but unpaid interest on this Note pursuant to Section 4(a) hereof at least two (2) business days prior to the option proposed date of such conversion.
(d) Upon any taking by the Company of a record of the Holderholders of any class or series of securities for the purpose of determining the holders thereof who are entitled to vote with respect to any Liquidation Event, in whole or in part at any time and from time to time, after the Original Issue Date (subject Company shall provide notice to the limitations Holder at least ten (10) business days prior to the record date specified therein (or such shorter period approved by a Majority of Holders) specifying (i) the date on conversion set forth which any such record is to be taken for the purpose of determining stockholders entitled to vote with respect to any such Liquidation Event and (ii) the date, if any, that is to be fixed as to when the holders of record of Common Stock (or other securities) shall be entitled to exchange their shares of Common Stock (or other securities) for securities or other property deliverable upon such Liquidation Event.
(e) In addition to the notice described in Section 4(a)(ii) hereof4(d). The Holder , the Company shall effect conversions by delivering provide notice to the Company a completed notice substantially in Holder of any Liquidation Event, as applicable, at least ten (10) business days prior to the form attached hereto as Exhibit A consummation of such event (a the "Conversion Corporate Event Notice"). The Conversion Corporate Event Notice shall set forth all material facts and terms relating to such Liquidation Event, including without limitation, as applicable: (i) the remaining principal amount nature, amount, terms and conditions of this Debenture and all accrued and unpaid interest thereon subsequent payment, if any, to the conversion at issue. The holders of Common Stock in connection with any such Liquidation Event, (ii) the date on which a Conversion Notice such Liquidation Event is delivered is expected to be consummated, (iii) the "Conversion Date." Unless procedures that must be followed (and the latest date that such procedures must be completed) in order for the Holder is converting to effect a conversion of this Note into shares of Common Stock, and (iv) a statement as to whether the entire principal amount outstanding under Company has elected to prepay this DebentureNote in connection with the Liquidation Event pursuant to Section 3(b) hereof. The Corporate Event Notice shall also provide the Holder with the option to require the Company to prepay this Note pursuant to Section 3(b) hereof. Upon receipt of the Corporate Event Notice, the Holder is not be required shall promptly (but in any event at least two (2) business days prior to physically surrender this Debenture the consummation of the Liquidation Event) provide written notice to the Company in order of its election (if Holder so elects) to effect conversions. Subject have this Note prepaid pursuant to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error3(b) hereof.
Appears in 2 contracts
Sources: 10% Secured Convertible Subordinated Note (New Leaf Brands, Inc.), 10% Secured Convertible Subordinated Note (New Leaf Brands, Inc.)
Conversion. On or after the date hereof, and prior to the maturity of the Convertible Notes or, if sooner, the Call Date (A) This Debenture as hereinafter defined), the holder of a Convertible Note shall be convertible into shares of Common Stock have the right, at the option of such holder (whether or not payment upon the HolderConvertible Notes is prohibited by the subordination provisions of Article 5) to convert, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth terms and provisions of this Article 11, all or, subject to the proviso contained in this Section 4(a)(ii) hereof). The 11.1, any portion of the Convertible Notes held by such holder into the number of shares of Common Stock issuable upon a conversion hereunder fully paid and nonassessable Shares as shall be determined by adding equal to the sum of (i) the quotient obtained by dividing (x) the outstanding aggregate principal amount of this Debenture to be Convertible Notes then being converted and (y) divided by the Conversion Price (then in effect, by delivery of the Convertible Notes to the Company at the office of the Company provided for in Section 8.2 herein; provided, however, that no holder of a Convertible Note shall be permitted to exercise its rights with respect to partial conversions as defined herein), and (ii) the amount equal herein described unless each such holder of a Convertible Note elects to (I) the product convert a minimum of (x) the outstanding at least $500,000 principal amount of this Debenture to be converted and (y) the product its Convertible Note or any additional amounts in multiples of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such $250,000 principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, of Convertible Notes; provided, further, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender issue any fractional shares in connection with any conversion pursuant to this Debenture Article 11. In the event that any Purchaser shall exercise the Convertible Notes held by it with respect to less than the entire aggregate principal amount outstanding of such Convertible Notes held by such Purchaser, the Company shall, or shall direct its transfer agent to, issue to such Purchaser certificates for the Shares of Common Stock for which such Convertible Note is being exercised in order such denominations as are required for delivery to effect conversions. Subject such Purchaser, and the Company shall, or shall direct its transfer agent to, thereupon deliver such certificates to Section 4(b)or in accordance with the instructions of such Purchaser, each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing issue to such Purchaser a new Convertible Note, duly executed by the Company, in form and substance identical to the Convertible Note surrendered by such Purchaser, for the balance of the aggregate principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorConvertible Notes that have not been so converted.
Appears in 2 contracts
Sources: Convertible Subordinated Note Purchase Agreement (Langer Inc), Convertible Subordinated Note Purchase Agreement (Langer Partners LLC)
Conversion. (A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant Subject to the terms hereofand conditions of this Agreement, subsection (ii) the Investors shall not be used have the right to convert principal of their Convertible Loans into overseas shares of Cayman Co or equity interest in the calculation of Target Company based on the number of shares of Common Stock issuable upon a corresponding appraised value, in particular:
1.7.1 Investor 1 Note I conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:and Investor 2 conversion
(1) On the number of shares of Common Stock at fifth (5th) day immediately after the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient following conditions precedent (the “Offshore Automatic Conversion Conditions”) applicable to pay interest hereunder in shares of Common Stock;
an Investor (the condition precedent (c) below not applicable to Investor 2) are fully satisfied or waived by such Investor in writing (the Underlying Shares issuable for such conversion conditions precedent (including any interest payable a) to (c) below applicable with respect to Investor 1; and the conditions precedent (a) to (b) below applicable with respect to Investor 2) and the Offshore Automatic Conversion Conditions are waived jointly by the Investor and the Target Company (applicable to the condition precedent set out in shares(d) (xbelow) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
any such other date as the Investor and the Target Company agree upon in writing (4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii“Automatic Conversion Date”), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of Investor 1 Note equivalent to thirty million Chinese yuan (RMB30,000,000) (the Debentures “Investor 1 Note I”) shall be automatically converted into the corresponding number of series B+ preferred shares of Cayman Co (the “Overseas Shares I of Investor 1”) on basis that then fully-diluted pre-money valuation of Cayman Co is RMB900,000,000 (“Pre-money Valuation of Investor 1 Conversion I”, and for the avoidance of doubt, the calculation of such fully-diluted pre-money valuation shall include the incentive shares/options (including the First Tranche Reserved Incentive Shares (as defined below), but for the avoidance of doubt, excluding the Reserved Incentive Shares II (as defined below)) reserved, issued and enlarged by Cayman Co under the Restructuring Framework Agreement, and ordinary shares issued by Cayman Co to be converted on such Conversion Date the Founders or their wholly-owned holding entity or trust established by them); and (b) the product of (x) Investor 2 Note shall be automatically converted into the quotient obtained by dividing .12 by 360 and (y) the corresponding number of series B+ preferred shares of Cayman Co (the “Overseas Shares of Investor 2”, together with Overseas Shares I of Investor 1, collectively the “First Tranche Overseas Shares”; and the corresponding conversions collectively referred to as the “Offshore Automatic Conversion” ) on basis that the then fully-diluted pre-money valuation of Cayman Co is RMB1,000,000,000 (for the avoidance of doubt, the calculation of such fully-diluted pre-money valuation shall include the incentive shares/options (including the First Tranche Reserved Incentive Shares (as defined below), but for the avoidance of doubt, excluding the Reserved Incentive Shares II (as defined below)) reserved, issued and enlarged by Cayman Co under the Restructuring Framework Agreement, and ordinary shares issued by Cayman Co to the Founders or their wholly-owned holding entity or trust established by them). Cayman Co shall issue the First Tranche Overseas Shares to the aforementioned Investors (or their designated affiliates) on the Automatic Conversion Date, and shall provide those Investors with a scanned copy of the register of members, which shall specify such Investors (or their designated affiliates) as the holders of the corresponding First Tranche Overseas Shares and shall be certified by the registered office provider of Cayman Co, and shall also provide a scanned copy of the share certificate duly executed and affixed with the common seal of Cayman Co (the original share certificate shall be provided to the aforementioned Investors within fifteen (15) days after the Automatic Conversion Date):
(a) pursuant to the Restructuring Framework Agreement, the Group has completed the Red Chip Restructuring and Cayman Co has completed the reservation of 150,000,000 ordinary shares (corresponding to the equity interest in the Target Company held in China by X-Charge Management as of the execution date of this Agreement, which, together with the Reserved Incentive Shares I (as defined below), are referred to as the “First Tranche Reserved Incentive Shares”); and no circumstance specified in paragraph 5.4.3 hereof occur;
(b) Cayman Co, all of its then shareholders (including all existing shareholders of the Target Company other than X-Charge Management or its designated overseas affiliates), the Investors (or their designated affiliates), and the Offshore Investors (or their designated affiliates) have executed the Amended and Restated Investors' Rights Agreement of Cayman Co and the general meeting of Cayman Co has duly resolved to pass the Amended and Restated Memorandum and Articles, provided that these two documents shall reflect that the shareholders’ rights are substantially identical to the rights of the Investors in the Target Company under the Transition Agreement (including the rights of the Convertible Loan Investor and rights of shareholders (if applicable)), and shall include the shareholders’ rights such as registration right and conversion right which are customary for overseas entities, and these two documents have been provided to the Investors;
(c) with respect to Investor 1, a scanned copy of the register of members of Cayman Co as certified by the registered office provider of Cayman Co have been submitted to Investor 1, which shall show that one (1) director nominated by Investor 1 (or its designated affiliate) has been appointed as a director of Cayman Co, and Cayman Co has executed the director indemnification agreement to be signed by Cayman Co, Investor 1 (or its designated affiliate) and the director appointed by Investor 1 (or its designated affiliate), and such principal amount was outstandingdocuments have been provided to Investor 1; and
(d) with respect to each Investor, the Investor has completed the ODI formalities in relation to its subscription for the corresponding First Tranche Overseas Shares in accordance with applicable laws, unless the Investor designates its affiliate to subscribe for the corresponding First Tranche Overseas Shares and such affiliate has completed all the required formalities in accordance with applicable laws (if any) in relation to its subscription for such First Tranche Overseas Shares.
(C2) This Debenture In the event that (a) the Group Company has completed the Red Chip Restructuring, but the Offshore Automatic Conversion Conditions are not fully satisfied prior to the expiry of the Convertible Loan Term due to the failure of Cayman Co or the Target Company to fulfill conditions set forth in points (a) to (c) of paragraph 1.7.1 (1) hereof (if applicable), and such Offshore Automatic Conversion Conditions have not been waived by the Investor in writing; or (b) the Group has not completed the Red Chip Restructuring prior to the expiry of the Convertible Loan Term, then: (i) Investor 1 has the right (but is not obliged) to request to convert the outstanding principal of Investor 1 Note I into equity in the Target Company on the basis that the pre-money valuation of Investor 1 Conversion I represents the pre-money valuation of the Target Company (the “Investor 1 Onshore Conversion I”), (ii) Investor 2 shall have the right (but not be obliged) to request to convert the outstanding principal of Investor 2 Note into equity in the Target Company on basis that the pre-money valuation of the Target Company is RMB 1,000,000,000 (the “Investor 2 Onshore Conversion”, together with Investor 1 Onshore Conversion I, collectively the “First Tranche Onshore Conversion”), and the Target Company shall register such Investor as a shareholder with respect to the aforesaid equity interest in its register of members on the date of receipt of such notice, cause the relevant documents such as the shareholders’ agreement and articles of association of the Target Company to be amended to reflect the foregoing arrangements, and shall, within thirty (30) business days thereafter, complete the registration and filing formalities with its competent company registration authority in connection with the aforementioned onshore conversion and the appointment of a directors by Investor 1.
(3) For the avoidance of doubt, if, prior to the occurrence of an Offshore Automatic Conversion, the conversion unit price of the Convertible Loan to which the First Tranche Onshore Conversion is related is changed to the adjusted unit price of the investment contemplated hereunder pursuant to paragraph 5.8.3 of the Transition Agreement, the conversion unit price for the Offshore Automatic Conversion shall be convertible adjusted accordingly pursuant to Article 5.8 of the Transition Agreement so that the corresponding Investors are entitled to anti-dilution protection at Cayman Co level substantially identical to that at the Target Company level.
1.7.2 Investor 1 Note II conversion
(1) Within fifteen (15) business days after all of the following conditions (the “Offshore Optional Conversion Conditions”) are satisfied or waived by Investor 1 in writing (applicable to the conditions precedent (a) to (b) below) and jointly waived by Investor 1 and the Target Company (applicable to the condition precedent (c) below) (or such later period as Investor 1 and the Target Company shall then otherwise agree) (the “Offshore Optional Conversion Time Limit”), Investor 1 has the right (but is not the obliged) to give a written notice to Cayman Co (the “Offshore Optional Conversion Notice”) requiring the conversion of the remaining notes (corresponding to the principal amount of the Convertible Loan of twenty million Chinese yuan (RMB 20,000,000), the “Investor 1 Note II”) into a corresponding number of series B + preference shares of Common Stock Cayman Co at the option conversion unit price of the HolderOverseas Share II of Investor 1. Notwithstanding the foregoing, if, prior to the occurrence of the Offshore Optional Conversion, a new round of financing occurs to Cayman Co, in whole which the unit price per additional share is lower than the conversion unit price of the Overseas Share II of Investor 1 calculated on basis that the consolidated pre-money valuation (see the calculation formula below) is equal to RMB1 billion (except for the Red Chip Restructuring as agreed under the Restructuring Framework Agreement and the conversion following provision of loan by the Offshore Co-investors to the Group Company under this Agreement and the Offshore Co-investor Note Agreement, the “New Financing of Cayman Co”), Investor 1 has the right to request converting Investor 1 Note II into the corresponding number of the preferred share class issued under the New Financing of Cayman Co whenever Investor 1 conducts the Offshore Optional Conversion at the conversion unit price of the Overseas Share II of Investor 1 defined in the point (b) of paragraph 1.7.2(2) in accordance with paragraph 1.7.2(2) (the aforesaid conversion shares referred to as “Overseas Share II of Investor 1”, and together with the First Tranche Overseas Shares, collectively or individually “Overseas Share”; and these conversions referred to as “Offshore Optional Conversion”, and together with Offshore Automatic Conversion, collectively or individually “Offshore Conversion”):
(a) Offshore Automatic Conversion has occurred, and Investor 1 (or its designated affiliate) has been registered as the holder of the relevant First Tranche Overseas Shares in part at any time the register of members of Cayman Co;
(b) The Group has submitted to the Investor the consolidated financial statements of the Group for the one (1) month immediately before the date of automatic conversion and the key operation data of the Group as set out in Exhibit V. If there is a material adjustment to the Principal Business of the Group, Investor 1 shall have the right to request the Group to update the key operation data set out in Exhibit V from time to time; and
(c) Investor 1 has completed the ODI formalities in relation to its subscription for Overseas Shares II of Investor 1 in accordance with the applicable laws, after unless Investor 1 designates its affiliate recognized by the Original Issue Date Target Company to subscribe for Overseas Shares II of Investor 1 and such affiliate has completed all required formalities (subject to if any) for such subscription in accordance with applicable laws.
(2) For the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount purposes of this Debenture and all accrued and unpaid interest thereon subsequent to Agreement, the “Conversion Unit Price of Overseas Shares II of Investor 1” means: (a) the conversion at issue. The date on which unit price per Overseas Shares II of Investor 1 that is such calculated that the consolidated pre-money valuation under two investments made by Investor 1 constituting the Offshore Automatic Conversion and Offshore Optional Conversion (see calculation formula below); or (b) 90% of unit price per share under a Conversion Notice New Financing of Cayman Co if such new financing occurs prior to or concurrently with the Offshore Conversion, whichever is delivered is the "Conversion Datelower." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Convertible Loan Investment Agreement (XCHG LTD), Convertible Loan Investment Agreement (XCHG LTD)
Conversion. (A) This Debenture 5.1. At any time prior to the repayment in full of the Secured Amount, the Lead Lender shall be convertible entitled, at its sole and absolute discretion, by written notice to the Company, to demand (such demand shall bind and shall apply to all the Lender(s)), to convert the entire Secured Amount into shares of Common Stock at the option Ordinary Shares, par value NIS 0.1 each, of the HolderCompany (the “Ordinary Shares”), at a price per share equal to the lower of (a) US $0.20 (twenty US cents) per share (subject to appropriate adjustment in the event of any bonus shares, combinations or splits) and (b) a price per share reflecting a discount to the average closing bid price of an Ordinary Share over the twenty (20) trading days preceding the Initial Closing (the “Benchmark Price”) as follows:
a) If conversion occurs no later than three (3) months after the Initial Closing, the discount shall be 20% (twenty percent) of the Benchmark Price;
b) If conversion occurs more than three (3) months but no later than six (6) months after the Initial Closing, the discount shall be 30% (thirty percent) of the Benchmark Price;
c) If conversion occurs more than six (6) months after the Initial Closing (to the extent extended in accordance with the terms hereof), the discount shall be 50% (fifty percent) of the Benchmark Price; and
d) If conversion occurs upon an Event of Default (as defined below), the discount shall be 50% (fifty percent) of the Benchmark Price.
5.2. For the avoidance of any doubt and notwithstanding any other provision herein, other than being subject to Section 5.3, in any event in which the Company intends or is obligated to repay the Secured Amount, in whole or in part, in cash, under the terms hereof, the Company shall notify the Lead Lender of such intended repayment no less than ten (10) business days prior to any actual repayment, to allow the Lead Lender to demand conversion of the respective amount, or any part at any time and from time thereof, into Ordinary Shares pursuant to time, after Section 5.1 above. To the Original Issue Date extent that the repayment in cash is expected to be performed in connection with the completion or consummation of a Disposition or a Corporate Transaction (subject to Section 5.3), the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon Lead Lender shall be so advised and shall be entitled to provide a conversion hereunder notice that is contingent upon such completion or consummation.
5.3. This Section 5 shall be determined enter into effect only upon approval thereof by adding the sum shareholders of the Company in accordance with the requirements of the Companies Law, which approval shall apply to a controlling shareholder transaction that includes a private offering that may increase the holdings of a controlling shareholder to and above 45% (iforty five percent) of the quotient obtained by dividing share capital of the Company (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined hereina “Shareholders’ Approval”), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of except for this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (iiSection 5.3) shall not be used in the calculation deemed of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, no force or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part effect at any time and from time prior to timeobtaining such Shareholders’ Approval, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof)if at all. The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing act to convene a shareholders meeting to obtain the principal amount converted and Shareholders’ Approval as soon as possible following the date of such conversions. In execution hereof, but in any event no later than fifty (50) days following the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorInitial Closing.
Appears in 2 contracts
Sources: Loan Financing Agreement (Ivy Jerry Lafe JR), Loan Financing Agreement (On Track Innovations LTD)
Conversion. (A) This Debenture shall be convertible into shares of Common Stock at In the option of the Holder, in whole or in part at any time and from time event that this Note converts to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price “Secured Convertible Demand Note” on the Conversion Date, providedthen commencing on the Maturity Date, the Borrower, upon demand by the Holder (the “Conversion Option”), shall be required to exchange and convert the Note into fully paid and non-assessable shares of the Borrower’s equity securities (the “Equity Securities”, it being understood that such Equity Securities may be in the form of membership interests if the Company remains a limited liability company at the time of conversion of this Note or stock, if the Company has converted to a corporation at the time of the conversion of this Note) as follows:
(a) Concurrently with the closing of the next round of public or private financing secured by the Borrower that closes before June 30, 2009 (the “Financing Event”), the class of Equity Securities to be issued to Holder shall be of the same class offered as part of the Financing Event, and such Equity Securities shall be issued with accompanying rights and privileges materially similar to those offered as part of the Financing Event (the “Tag Along Conversion Stock”; for convenience, the use of this term assumes that the Company is a corporation at the time of conversion, it being understood that if the Company Equity Securities are converted into membership interests at the time of conversion, the term will refer to membership interests acquired in such conversion). Concurrently with a Financing Event, at the election of the Holder, as an alternative to its Demand Right set forth in Section 1.2(b), all amounts due under the Note shall have timely elected convert to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Tag Along Conversion Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to as determined through whichever of the contrary contained herein, if on any Conversion Date:
(1) following methods/formulas set forth below results in the highest number of shares of Common Tag Along Conversion Stock issued by the Borrower:
A. total outstanding Principal ▇▇▇▇▇▇ and accrued interest due (and failed payment fee(s) if incurred) / ($31,600,000 / total outstanding capital stock of Borrower on an as-converted basis on date of conversion); or
B. total outstanding Principal ▇▇▇▇▇▇ and accrued interest (and failed payment fee(s) if incurred) due X the price per share paid (ignoring the effect of any stock splits or other mechanisms adopted at the time authorized, unissued and unreserved for all purposes, of conversion to arrive at a per share value that do not change the economic substance or held as treasury stock, is insufficient to pay interest hereunder value of the converted Equity Securities) by the investor(s) participating in shares of Common Stock;the Financing Event.
(2b) In the Underlying Shares issuable for such conversion event that no Financing Event occurs before June 30, 2009 and the Holder has not exercised its Conversion Option under Section 2.1(b)(ii), then on June 30, 2009 (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6“Final Conversion Date”);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company , provided Holder has failed to timely satisfy its conversion obligations hereunder; or
given five (5) business days written notice of its desire to exercise the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), thenConversion Option, the Company may not pay interest in kind class of Equity Securities to be issued to Holder shall be common stock or membership interests, as applicable, and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an the amount in cash equal to the product of (a) the outstanding principal amount be issued shall be determined though utilization of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion formula set forth in Section 4(a)(ii3.1(a)(A) hereof)above. The If Holder elects not to exercise its Conversion Option in accordance with Section 2.1(b)(ii) or Section 3.1, the Note shall effect conversions by delivering to become due and payable on the Company a completed notice substantially in Final Conversion Date. ▇▇▇▇▇▇▇▇ understands and agrees the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall Option set forth the remaining principal amount of this Debenture herein is provided to Holder in addition to any other right or remedy set forth herein, including but not limited to its Demand Right, and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which no time shall such Conversion Option be deemed a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records automatic obligation of the Holder shall be controlling and determinative in the absence of manifest errorHolder.
Appears in 2 contracts
Sources: Secured Term Note (SouthPeak Interactive CORP), Secured Term Note (SouthPeak Interactive CORP)
Conversion. (A) This Debenture A. Lender shall be convertible into shares have the right, subject to the terms and provisions of Common Stock this ARTICLE X, at the option of the HolderLender, (i) at any time, to convert, the unpaid principal amount of the Term Loans or any portion thereof, and any accrued and unpaid interest on such Term Loans, and (ii) at any time prior to the Termination Date, to simultaneously advance and convert all or any portion of the remaining Commitment, or after the Commitment Period, to simultaneously advance and convert an amount equal to the amount of the Commitment, if any, which was not advanced as a Term Loan during the Commitment Period (it being acknowledged that this does not extend the Commitment Period), into fully paid and non-assessable shares of Borrower Common Stock or any capital stock or other securities into which such Borrower Common Stock shall have been changed or any capital stock or other securities resulting from a reclassification thereof ("Shares"). Such conversion of Term Loans and simultaneous advance and conversion of the Commitment to Shares shall be made at an amount per Share which is equal to the then Current Conversion Price, as further described below. The Term Loans and Commitment shall continue to be convertible, in whole or in part at any time part, even though Borrower may have given notice of prepayment of the Term Loans or termination of the Commitment pursuant to Sections 2.01.D and from time 2.02.C, so long as Lender's notice of election to timeconvert has been delivered to Borrower within the Early Termination period.
B. For convenience, after the Original Issue Date (subject conversion pursuant to this Article X of all or a portion of the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and Term Loans (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product and/or of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent if elected by Lender) and/or Commitment into Shares is herein sometimes referred to the conversion at issue. The date on which a Conversion Notice is delivered is as the "Conversion Date.conversion" Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorTerm Loans/Commitment.
Appears in 2 contracts
Sources: Convertible Loan and Security Agreement (Covol Technologies Inc), Convertible Loan and Security Agreement (Pacificorp /Or/)
Conversion. In accordance with and pursuant to such Certificate of Designations, the Holder hereby elects to convert the number of shares of the Corporation’s Series A Cumulative Convertible Preferred Stock (the “Series A”) This Debenture shall be convertible indicated below into shares of Common Stock at of the option Corporation (the “Common Shares”) as of the date specified below. Name of Holder: ___________________ Holder Conversion Date: ___________________ Number of Shares of Series A Held by ▇▇▇▇▇▇: _______________________ Amount Being Converted Hereby: _______________________ Series A Held After Conversion: _______________________ If the shares of Series A to be converted are held through a nominee, please provide details of the brokerage account: Broker: ___________________________________________ DTC No.: _____________________________________ Acct. Name: ______________________________________________ For Further Credit (if applicable): ___________________________________________ Delivery of Shares: Pursuant to this Notice of Conversion, the Corporation shall deliver the applicable number of Common Shares issuable in accordance with the terms of the Certificate of Designations as set forth below. If Common Shares are to be issued in the name of a person other than the Holder, the Holder will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as reasonably requested by the Corporation in whole or in part at any time and from time to time, after the Original Issue Date (subject accordance therewith. No fee will be charged to the limitations on conversion set forth in Section 4(a)(ii) hereof)Holder for any conversion, except for such transfer taxes, if any. The number Holder acknowledges and confirms that the Common Shares issued pursuant to this Notice of shares Conversion will, to the extent not previously registered by the Corporation under the U.S. Securities Act of 1933, as amended (the “Securities Act”) be “restricted securities” within the meaning of Rule 144 under the Securities Act, unless the Common Stock issuable upon Shares are covered by a conversion hereunder valid and effective registration statement under the Securities Act or this Notice of Conversion includes a valid opinion from an attorney stating that such Common Shares can be issued free of restrictive legend, which shall be determined by adding the sum of (i) Corporation in its sole discretion. If the quotient obtained by dividing (x) the outstanding principal amount of this Debenture Common Shares are to be converted and delivered through DWAC, please provide details of the brokerage account for delivery (y) Note: Common Shares that will be issued as “restricted securities” are not eligible for settlement through DWAC): Broker: ___________________________________________ DTC No.: _____________________________________ Acct. Name: ______________________________________________ For Further Credit (if applicable): ___________________________________________ The undersigned (collectively, the Conversion Price (as defined herein“Stockholders”), and being holders of Series A Cumulative Convertible Preferred Stock, par value $0.001 per share (iithe “Series A”) of ▇▇▇▇▇▇▇ Motion Inc., a Delaware corporation (the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b“Corporation”), each Conversion NoticeStockholder acting with respect to all shares of Series A owned by such Stockholder or over which such Stockholder otherwise possesses the authority to vote, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal hereby consent to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records adoption of the Holder shall be controlling and determinative in following resolutions by written consent pursuant to Section 228 of the absence General Corporation Law of manifest error.the State of Delaware:
Appears in 2 contracts
Sources: Transaction Agreement (Garrett Motion Inc.), Transaction Agreement (Garrett Motion Inc.)
Conversion. (A1) This Debenture Provided that there are no unresolved claims for losses incurred by Parent pursuant to the indemnification provisions of Section 8 of the Purchase Agreement, the holder of this Instrument is entitled at any time after August 30, 2003 and from time to time before the close of business on the Maturity Date, to convert the principal amount of this Instrument (or any portion of the principal amount hereof that is an integral multiple of $1,000), into fully paid and nonassessable Common Stock (calculated as to each conversion to the nearest 1/100 of a share) of the Parent at the rate of 62.50 shares of Common Stock for each $1,000 principal amount of Instrument (or at the then current adjusted rate if an adjustment has been made as provided below) (the "Conversion Rate") by surrender of this Instrument, duly endorsed or assigned to the Company or in blank to the Company at the Designated Office, accompanied by written notice to the Company, in the form attached hereto, that the holder hereof elects to convert this Instrument (or if less than the entire principal amount hereof is to be converted, specifying the portion hereof to be converted). If the holder elects to exercise its conversion right hereunder, then the Company shall, within five (5) Business Days after receipt of written notice of such election, deliver or cause to be delivered to the holder at the address specified by the holder to the Company in the conversion notice a certificate or certificates for the Common Stock issued upon such conversion and any replacement Instrument issued as a result of any partial conversion of this Instrument.
(2) Upon surrender of this Instrument for conversion, the holder will be entitled to payment in cash within three (3) Business Days thereafter of the interest accrued on the principal amount of this Instrument then being converted and unpaid to such date of conversion (a "Company Conversion Date").
(3) Subject to Section 2(b) below, no payment or adjustment is to be made on conversion for dividends on the Common Stock issued on conversion hereof. No fractions of shares or scrip representing fractions of shares will be issued on conversion, but instead of any fractional interest, the Company shall be convertible pay a cash adjustment, computed on the basis of the Closing Price of the Common Stock on the Trading Day immediately prior to the Company Conversion Date, or, at its option, the Company shall round up to the next higher whole share.
(4) In the event that the conversion of this Instrument into shares of Common Stock at would require the option Parent and the holder of this Instrument to file notification and report forms with the Federal Trade Commission (the "FTC") and Antitrust Division of the Holder, in whole or in part at any time and from time to time, after Department of Justice (the Original Issue Date (subject "DOJ") pursuant to the limitations on conversion set forth in Section 4(a)(ii) hereofHart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "▇▇▇ ▇▇▇"). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of , ▇▇▇▇ (i) the quotient obtained by dividing (x) the outstanding principal amount holder of this Debenture Instrument shall, and the Company shall cause the Parent to be converted use best efforts to complete all applicable filings and (y) provide all necessary information as required pursuant to the Conversion Price (as defined herein)HSR Act, and (ii) the amount equal to (I) the product of (x) the outstanding principal amount holder of this Debenture Instrument and the Company agree that such conversion of this Instrument into shares of Common Stock shall not occur until such time as the required filings are made pursuant to the HSR Act and the required waiting period(s) have expired or early termination of the required waiting period(s) has been granted by the FTC or the DOJ. The Parent and the holder will each bear their own respective filing fees for any filings made pursuant to the HSR Act, and the Company shall cause the Parent to pay any such fees to be converted borne by it. The Company shall, if the holder so elects, and within the time period prescribed in Section 2(a)(1) hereof, deliver or cause to be delivered the Common Stock issuable upon conversion of this Instrument to any third party or parties designated by the holder, subject to compliance with Sections 2(f), 8(d) and 8(f) hereof.
(yb) the product of The Conversion Rate will be subject to adjustments from time to time as follows:
(1) In case the quotient obtained Parent shall pay or make a dividend or other distribution on Common Stock of the Parent payable in Common Stock, the Conversion Rate in effect at the opening of business on the day following the Determination Date (as hereinafter defined) for such dividend or other distribution shall be increased by dividing .12 such Conversion Rate by 360 and (2) a fraction of which the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company numerator shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock outstanding at the close of business on such Determination Date and the denominator shall be the sum of such number of shares of Common Stock and the total number of shares of Common Stock constituting such dividend or other distribution, such increase to become effective immediately after the opening of business on the day following such Determination Date. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include Common Stock held in the treasury of the Parent but shall include Common Stock issuable upon a conversion hereunderin respect of scrip certificates issued in lieu of fractions of Common Stock. The Parent will not pay any dividend or make any distribution on Common Stock held in the treasury of the Parent.
(B2) Notwithstanding anything In case the Parent shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (7) of this Section 2(b)) of the Common Stock on the Determination Date for such distribution, the Conversion Rate in effect at the opening of business on the day following such Determination Date shall be increased by dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such Determination Date plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on such Determination Date plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following such Determination Date. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include Common Stock held in the treasury of the Parent but shall include Common Stock issuable in respect of scrip certificates issued in lieu of fractions of Common Stock. The Parent will not issue any rights, options or warrants in respect of Common Stock held in the treasury of the Parent. Upon the expiration of any right, option or warrant to purchase Common Stock the issuance of which resulted in an adjustment to the contrary contained hereinConversion Rate pursuant to this paragraph (2) of Section 2(b), if any such right, option or warrant shall expire and shall not have been exercised, the Conversion Rate shall immediately upon such expiration be recomputed to the Conversion Rate which would have been in effect had the adjustment of the Conversion Rate made upon the issuance of such right, option or warrant been made on any Conversion Date:the basis of offering for subscription or purchase only that number of shares of Common Stock actually purchased upon the exercise of such right, option and warrant actually exercised.
(3) In case outstanding Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Parent shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section 2(b), (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section 2(b) and (iv) any merger or consolidation to which Section 2(h) applies (the "Distributed Property"), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the Determination Date for such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (7) of this Section 2(b)) of the Common Stock on such Determination Date less the then fair market value (as determined in good faith by the Board of Directors of the Parent in accordance with the provisions of this paragraph 4 of Section 2(b)) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following such Determination Date; provided, however, that if the Distributed Property consists of shares of capital stock of a Subsidiary, the Parent may, at its option and in lieu of the foregoing adjustment to the Conversion Rate, elect to make adequate provision so that the holder of this Instrument shall have the right to receive upon conversion the amount of such shares of capital stock that such holder of this Instrument would have received if such holder of this Instrument had converted such Instrument on the record date. If the Board of Directors determines the fair market value of any distribution for purposes of this paragraph (4) by reference to the actual or when issued trading market for any securities constituting such distribution, it must in doing so consider the prices in such market over the same period used in computing the current market price per share pursuant to paragraph (7) of this Section 2(b). In the event the Parent implements a stockholder's rights plan (a "Rights Plan"), upon conversion of this Instrument into Common Stock, to the extent that the Rights Plan is still in effect upon such conversion, the holder of this Instrument will receive, in addition to the Common Stock, the rights described therein (whether or not the rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in the Rights Plan. Any distribution of rights or warrants pursuant to the Rights Plan in compliance with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 2(b). Rights or warrants distributed by the Parent to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Parent's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 2(b) (and no adjustment to the Conversion Rate under this Section 2(b) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 2(b). If any such right or warrant, including any such existing rights or warrants distributed prior to the original issue date of this Instrument, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this section was made, (x) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (y) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(5) In case the Parent shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of Section 2(b)) in an aggregate amount that, combined with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the twelve (12) months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) of Section 2(b) has been made and (II) the aggregate of any cash plus the fair market value (as determined by the Parent's Board of Directors, whose determination shall be conclusive and described in a board resolution) of consideration payable in respect of any tender offer by the Parent or any of its subsidiaries for all or any portion of the Common Stock concluded within the twelve (12) months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of Section 2(b) has been made (the "combined cash and tender amount"), exceeds ten percent (10%) of the product of the current market price per share of the Common Stock (determined as provided in paragraph (7) of this Section 2(b)) on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the current market price per share of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over ten percent (10%) of such aggregate current market price divided by (y) the number of shares of Common Stock at the time authorized, unissued outstanding on such date for determination and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2ii) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.denominator
Appears in 2 contracts
Sources: Convertible Note Agreement (Tekelec), Convertible Note Agreement (Catapult Communications Corp)
Conversion. (A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant Subject to the terms hereofand conditions of this Agreement, subsection (ii) the Investors shall not be used have the right to convert principal of their Convertible Notes into overseas shares of Cayman Co or equity interest in the calculation of Target Company based on the number of shares of Common Stock issuable upon a corresponding appraised value, in particular:
1.7.1 Investor 1 Note I conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:and Investor 2 conversion
(1) On the number of shares of Common Stock at fifth (5th) day immediately after the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient following conditions precedent (the “Offshore Automatic Conversion Conditions”) applicable to pay interest hereunder in shares of Common Stock;
an Investor (the condition precedent (c) below not applicable to Investor 2) are fully satisfied or waived by such Investor in writing (the Underlying Shares issuable for such conversion conditions precedent (including any interest payable a) to (c) below applicable with respect to Investor 1; and the conditions precedent (a) to (b) below applicable with respect to Investor 2) and the Offshore Automatic Conversion Conditions are waived jointly by the Investor and the Target Company (applicable to the condition precedent set out in shares(d) (xbelow) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
any such other date as the Investor and the Target Company agree upon in writing (4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii“Automatic Conversion Date”), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of Investor 1 Note equivalent to thirty million Chinese yuan (RMB30,000,000) (the Debentures “Investor 1 Note I”) shall be automatically converted into the corresponding number of series B+ preferred shares of Cayman Co (the “Overseas Shares I of Investor 1”) on basis that then fully-diluted pre-money valuation of Cayman Co is RMB900,000,000 (“Pre-money Valuation of Investor 1 Conversion I”, and for the avoidance of doubt, the calculation of such fully-diluted pre-money valuation shall include the incentive shares/options (including the First Tranche Reserved Incentive Shares (as defined below), but for the avoidance of doubt, excluding the Reserved Incentive Shares II (as defined below)) reserved, issued and enlarged by Cayman Co under the Restructuring Framework Agreement, and ordinary shares issued by Cayman Co to be converted on such Conversion Date the Founders or their wholly-owned holding entity or trust established by them); and (b) the product of (x) Investor 2 Note shall be automatically converted into the quotient obtained by dividing .12 by 360 and (y) the corresponding number of series B+ preferred shares of Cayman Co (the “Overseas Shares of Investor 2”, together with Overseas Shares I of Investor 1, collectively the “First Tranche Overseas Shares”; and the corresponding conversions collectively referred to as the “Offshore Automatic Conversion” ) on basis that the then fully-diluted pre-money valuation of Cayman Co is RMB1,000,000,000 (for the avoidance of doubt, the calculation of such fully-diluted pre-money valuation shall include the incentive shares/options (including the First Tranche Reserved Incentive Shares (as defined below), but for the avoidance of doubt, excluding the Reserved Incentive Shares II (as defined below)) reserved, issued and enlarged by Cayman Co under the Restructuring Framework Agreement, and ordinary shares issued by Cayman Co to the Founders or their wholly-owned holding entity or trust established by them). Cayman Co shall issue the First Tranche Overseas Shares to the aforementioned Investors (or their designated affiliates) on the Automatic Conversion Date, and shall provide those Investors with a scanned copy of the register of members, which shall specify such Investors (or their designated affiliates) as the holders of the corresponding First Tranche Overseas Shares and shall be certified by the registered office provider of Cayman Co, and shall also provide a scanned copy of the share certificate duly executed and affixed with the common seal of Cayman Co (the original share certificate shall be provided to the aforementioned Investors within fifteen (15) days after the Automatic Conversion Date):
(a) pursuant to the Restructuring Framework Agreement, the Group has completed the Red Chip Restructuring and Cayman Co has completed the reservation of 150,000,000 ordinary shares (corresponding to the equity interest in the Target Company held in China by X-Charge Management as of the execution date of this Agreement, which, together with the Reserved Incentive Shares I (as defined below), are referred to as the “First Tranche Reserved Incentive Shares”); and no circumstance specified in paragraph 5.4.3 hereof occur;
(b) Cayman Co, all of its then shareholders (including all existing shareholders of the Target Company other than X-Charge Management or its designated overseas affiliates), the Investors (or their designated affiliates), and the Offshore Investors (or their designated affiliates) have executed the Amended and Restated Investors' Rights Agreement of Cayman Co and the general meeting of Cayman Co has duly resolved to pass the Amended and Restated Memorandum and Articles, provided that these two documents shall reflect that the shareholders’ rights are substantially identical to the rights of the Investors in the Target Company under the Transition Agreement (including the rights of the Convertible Note Investor and rights of shareholders (if applicable)), and shall include the shareholders’ rights such as registration right and conversion right which are customary for overseas entities, and these two documents have been provided to the Investors;
(c) with respect to Investor 1, a scanned copy of the register of members of Cayman Co as certified by the registered office provider of Cayman Co have been submitted to Investor 1, which shall show that one (1) director nominated by Investor 1 (or its designated affiliate) has been appointed as a director of Cayman Co, and Cayman Co has executed the director indemnification agreement to be signed by Cayman Co, Investor 1 (or its designated affiliate) and the director appointed by Investor 1 (or its designated affiliate), and such principal amount was outstandingdocuments have been provided to Investor 1; and
(d) with respect to each Investor, the Investor has completed the ODI formalities in relation to its subscription for the corresponding First Tranche Overseas Shares in accordance with applicable laws, unless the Investor designates its affiliate to subscribe for the corresponding First Tranche Overseas Shares and such affiliate has completed all the required formalities in accordance with applicable laws (if any) in relation to its subscription for such First Tranche Overseas Shares.
(C2) This Debenture In the event that (a) the Group Company has completed the Red Chip Restructuring, but the Offshore Automatic Conversion Conditions are not fully satisfied prior to the expiry of the Convertible Note Term due to the failure of Cayman Co or the Target Company to fulfill conditions set forth in points (a) to (c) of paragraph 1.7.1 (1) hereof (if applicable), and such Offshore Automatic Conversion Conditions have not been waived by the Investor in writing; or (b) the Group has not completed the Red Chip Restructuring prior to the expiry of the Convertible Note Term, then: (i) Investor 1 has the right (but is not obliged) to request to convert the outstanding principal of Investor 1 Note I into equity in the Target Company on the basis that the pre-money valuation of Investor 1 Conversion I represents the pre-money valuation of the Target Company (the “Investor 1 Onshore Conversion I”), (ii) Investor 2 shall have the right (but not be obliged) to request to convert the outstanding principal of Investor 2 Note into equity in the Target Company on basis that the pre-money valuation of the Target Company is RMB 1,000,000,000 (the “Investor 2 Onshore Conversion”, together with Investor 1 Onshore Conversion I, collectively the “First Tranche Onshore Conversion”), and the Target Company shall register such Investor as a shareholder with respect to the aforesaid equity interest in its register of members on the date of receipt of such notice, cause the relevant documents such as the shareholders’ agreement and articles of association of the Target Company to be amended to reflect the foregoing arrangements, and shall, within thirty (30) business days thereafter, complete the registration and filing formalities with its competent company registration authority in connection with the aforementioned onshore conversion and the appointment of a directors by Investor 1.
(3) For the avoidance of doubt, if, prior to the occurrence of an Offshore Automatic Conversion, the conversion unit price of the Convertible Note to which the First Tranche Onshore Conversion is related is changed to the adjusted unit price of the investment contemplated hereunder pursuant to paragraph 5.8.3 of the Transition Agreement, the conversion unit price for the Offshore Automatic Conversion shall be convertible adjusted accordingly pursuant to Article 5.8 of the Transition Agreement so that the corresponding Investors are entitled to anti-dilution protection at Cayman Co level substantially identical to that at the Target Company level.
1.7.2 Investor 1 Note II conversion
(1) Within fifteen (15) business days after all of the following conditions (the “Offshore Optional Conversion Conditions”) are satisfied or waived by Investor 1 in writing (applicable to the conditions precedent (a) to (b) below) and jointly waived by Investor 1 and the Target Company (applicable to the condition precedent (c) below) (or such later period as Investor 1 and the Target Company shall then otherwise agree) (the “Offshore Optional Conversion Time Limit”), Investor 1 has the right (but is not the obliged) to give a written notice to Cayman Co (the “Offshore Optional Conversion Notice”) requiring the conversion of the remaining notes (corresponding to the principal amount of the Convertible Note of twenty million Chinese yuan (RMB 20,000,000), the “Investor 1 Note II”) into a corresponding number of series B + preference shares of Common Stock Cayman Co at the option conversion unit price of the HolderOverseas Share II of Investor 1. Notwithstanding the foregoing, if, prior to the occurrence of the Offshore Optional Conversion, a new round of financing occurs to Cayman Co, in whole which the unit price per additional share is lower than the conversion unit price of the Overseas Share II of Investor 1 calculated on basis that the consolidated pre-money valuation (see the calculation formula below) is equal to RMB1 billion (except for the Red Chip Restructuring as agreed under the Restructuring Framework Agreement and the conversion following provision of note loan by the Offshore Co-investors to the Group Company under this Agreement and the Offshore Co-investor Note Agreement, the “New Financing of Cayman Co”), Investor 1 has the right to request converting Investor 1 Note II into the corresponding number of the preferred share class issued under the New Financing of Cayman Co whenever Investor 1 conducts the Offshore Optional Conversion at the conversion unit price of the Overseas Share II of Investor 1 defined in the point (b) of paragraph 1.7.2(2) in accordance with paragraph 1.7.2(2) (the aforesaid conversion shares referred to as “Overseas Share II of Investor 1”, and together with the First Tranche Overseas Shares, collectively or individually “Overseas Share”; and these conversions referred to as “Offshore Optional Conversion”, and together with Offshore Automatic Conversion, collectively or individually “Offshore Conversion”):
(a) Offshore Automatic Conversion has occurred, and Investor 1 (or its designated affiliate) has been registered as the holder of the relevant First Tranche Overseas Shares in part at any time the register of members of Cayman Co;
(b) The Group has submitted to the Investor the consolidated financial statements of the Group for the one (1) month immediately before the date of automatic conversion and the key operation data of the Group as set out in Exhibit V. If there is a material adjustment to the Principal Business of the Group, Investor 1 shall have the right to request the Group to update the key operation data set out in Exhibit V from time to time; and
(c) Investor 1 has completed the ODI formalities in relation to its subscription for Overseas Shares II of Investor 1 in accordance with the applicable laws, after unless Investor 1 designates its affiliate recognized by the Original Issue Date Target Company to subscribe for Overseas Shares II of Investor 1 and such affiliate has completed all required formalities (subject to if any) for such subscription in accordance with applicable laws.
(2) For the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount purposes of this Debenture and all accrued and unpaid interest thereon subsequent to Agreement, the “Conversion Unit Price of Overseas Shares II of Investor 1” means: (a) the conversion at issue. The date on which unit price per Overseas Shares II of Investor 1 that is such calculated that the consolidated pre-money valuation under two investments made by Investor 1 constituting the Offshore Automatic Conversion and Offshore Optional Conversion (see calculation formula below); or (b) 90% of unit price per share under a Conversion Notice New Financing of Cayman Co if such new financing occurs prior to or concurrently with the Offshore Conversion, whichever is delivered is the "Conversion Datelower." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Convertible Note Investment Agreement (XCHG LTD), Convertible Note Investment Agreement (XCHG LTD)
Conversion. (Aa) Conversion at Option of Holder. ----------------------------------
(i) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (as defined in Section 5) (subject to the limitations on conversion set forth in Section 4(a)(ii3(b) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) equals the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and by (y) the Conversion Price (as defined hereinin Section 3(c)(i), and ). The Obligor shall deliver Common Stock certificates to the Holder prior to the Fifth (ii5th) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Trading Day after a Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(Bii) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
: (1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay principal and interest hereunder in shares of Common Stock;
; (2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
; (43) the Company Obligor has failed to timely satisfy its conversion obligations hereunderconversion; or
or (54) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(iiSection 3(b), then, at the Company may not pay interest option of the Holder, the Obligor, in kind and must pay interest in cash by deliveringlieu of delivering shares of Common Stock pursuant to Section 3(a)(i), shall deliver, within three (3) Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on plus any interest due therein divided by the Conversion Price, chosen by the Holder, and multiplied by the highest closing price of the stock from date of the conversion notice till the date that such cash payment is made. Further, if the Obligor shall not have delivered any cash due in respect of conversion of this Debenture or as payment of interest thereon by the fifth (5th) Trading Day after the Conversion Date and (b) Date, the product of (x) Holder may, by notice to the quotient obtained by dividing .12 by 360 and (y) Obligor, require the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into Obligor to issue shares of Common Stock at pursuant to Section 3(c), except that for such purpose the option Conversion Price applicable thereto shall be the lesser of the Holder, in whole or in part at any time Conversion Price on the Conversion Date and from time to time, after the Original Issue Date (Conversion Price on the date of such Holder demand. Any such shares will be subject to the limitations on conversion set forth in Section 4(a)(iiprovisions of this Section.
(iii) hereof). The Holder shall effect conversions by delivering to the Company Obligor a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company Obligor in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company Obligor shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Debenture Agreement (Americana Publishing Inc), Debenture Agreement (Americana Publishing Inc)
Conversion. 3.1 The Lender has the right, at the Lender's option, at any time, to convert all but not less than all of the Loan (A"Conversion") This Debenture into shares in the Company having identical rights to the then most senior shares in the Company (if there shall be convertible into more than one class of shares of Common Stock at the option of the Holder, in whole or in part at any time and from time of Conversion) together with all rights provided by the Company to timepurchasers of such shares, after the Original Issue Date by contract or otherwise (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof"Shares"). The number of shares of Common Stock issuable upon a conversion hereunder Shares into which the Loan may be converted shall be determined by adding dividing the sum of (i) the quotient obtained Loan by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount a price equal to US$0.25 cents per share (I) the product of (x) "Conversion Price").
3.2 In order to effect a Conversion the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if Lender shall provide the Company shall have timely elected to pay with written notice (the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth ) of its election to convert the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject Loan pursuant to Section 4(b), each 3.1 above. As soon as practicable after receipt of the Conversion Notice, once giventhe Company shall report the issuance of shares to the Israeli Registrar of Companies, shall update its Shareholders Registry and shall issue a certificate in the name of the Lender for such class and number of shares to which the Lender shall be irrevocableentitled hereunder. Conversions hereunder No fractional shares shall have be issued. In lieu of the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal Company issuing any fractional shares to the applicable conversionLender, which upon the Conversion hereunder, the Company shall pay to the Lender the balance of the Loan that is not so converted. Conversion shall be evidenced deemed to have been made immediately prior to the close of business on the date of receipt by notations made in the Company of the Conversion Notice, and Lender shall be treated for all purposes as the record holder or holders of such Shares as of such date. The Holder and election of the Company shall maintain records showing Lender to effect a Conversion immediately prior to the principal amount converted and closing of a Sale (as defined below), may be made conditional upon the date closing of such conversions. In the event of any dispute or discrepancySale.
3.3 Upon Conversion, the records Company's obligation of the Holder repayment hereunder shall automatically be controlling deemed null and determinative in the absence of manifest errorvoid concurrently with such Conversion.
Appears in 2 contracts
Sources: Convertible Loan Agreement (XDL Capital Corp), Convertible Loan Agreement (Commtouch Software LTD)
Conversion. (Aa) This Debenture The Holder shall be convertible into shares of Common Stock have the right at any time prior to the option of the Holder, Maturity Date or a Prepayment Date to convert in whole or in part at any time the unpaid principal of this Note, and from time to timeaccrued and unpaid interest thereon, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The into such number of fully-paid and nonassessable shares of Common Stock issuable upon a conversion hereunder shall be as is determined by adding dividing the sum of (i) the quotient obtained by dividing (x) the outstanding principal aggregate amount of this Debenture principal and interest to be converted and by the conversion price in effect on the date this Note is surrendered for conversion (y) the "Conversion Price (as defined hereinPrice"); provided, and (ii) that, following any Prepayment Date, a Holder shall continue to have the amount equal right to (I) the product of (x) the outstanding convert any principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstandingNote that remains unpaid, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all together with accrued and unpaid interest thereon subsequent to the conversion at issuethereon. The date on which a initial Conversion Notice is delivered is the "Price shall be $2.75 per share of Common Stock. Such initial Conversion DatePrice shall be subject to adjustment as set forth in Paragraph 4." Unless the
(b) The Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to shall notify the Company in order of its intention to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount convert all or a portion of this Debenture plus all accrued and unpaid interest thereon in an amount equal Note pursuant to the applicable conversion, which shall be evidenced by notations made in the Conversion Noticethis Paragraph 3.
1. The Holder and the Company shall maintain records showing the principal amount converted and Within five (5) Business Days after the date of such conversions. In notice of intention, the event Company shall deliver to the Holder a certificate, signed by the Company's Chief Executive Officer and Chief Financial Officer, to the effect that: (i) since the end of the Company's most recently completed fiscal year, there has been no material adverse change in the business, assets, properties, liabilities, condition (financial or otherwise) or results of operations of the Company or any of its subsidiaries; (ii) there is no material action, suit or proceeding, or governmental inquiry or investigation, pending, or, to the best of the Company's knowledge, threatened, against the Company or any of its subsidiaries; and (iii) neither the Company nor, to the best of the Company's knowledge, any other party thereto is in default in any material respect of any dispute of its obligations under any material agreement or discrepancycontract of the Company. If, for any reason, the records Company is unable to certify as to any of the above matters, it shall so notify the Holder, and shall deliver a certificate as to the remaining matters, within such five (5) Business Day period. The delivery of any certificate by the Company to the Holder pursuant to this Paragraph 3.1(b) shall be controlling and determinative in not obligate the absence of manifest errorHolder to convert this Note.
Appears in 2 contracts
Sources: Senior Convertible Promissory Note (Celgene Corp /De/), Senior Convertible Promissory Note (Pharmion Corp)
Conversion. (a) (i) Conversion at Option of Holder.
(A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (as defined in Section 4) (subject to the limitations on conversion set forth in Section 4(a)(ii3(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) equals the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and by (y) the Conversion Price (as defined hereinin Section 3(c)(i), and ). The Obligor shall deliver Common Stock certificates to the Holder prior to the Fifth (ii5th) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Trading Day after a Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
: (1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay principal and interest hereunder in shares of Common Stock;
; (2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
; (43) the Company Obligor has failed to timely satisfy its conversion obligations hereunderconversion; or
or (54) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(iiSection 3(a)(ii), then, at the Company may not pay interest option of the Holder, the Obligor, in kind and must pay interest in cash by deliveringlieu of delivering shares of Common Stock pursuant to Section 3(a)(i)(A), shall deliver, within three (3) Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted plus any interest due therein divided by the Conversion Price and multiplied by the highest closing price of the stock from date of the conversion notice till the date that such cash payment is made. Further, if the Obligor shall not have delivered any cash due in respect of conversion of this Debenture or as payment of interest thereon by the fifth (5th) Trading Day after the Conversion Date, the Holder may, by notice to the Obligor, require the Obligor to issue shares of Common Stock pursuant to Section 3(c), except that for such purpose the Conversion Price applicable thereto shall be the lesser of the Conversion Price on such the Conversion Date and (b) the product Conversion Price on the date of (x) such Holder demand. Any such shares will be subject to the quotient obtained by dividing .12 by 360 and (y) the number provisions of days for which such principal amount was outstandingthis Section.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company Obligor a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company Obligor in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company Obligor shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Debenture Agreement (Innova Holdings), Secured Convertible Debenture (In Veritas Medical Diagnostics, Inc.)
Conversion. (Aa) This Debenture If a Fundamental Change occurs, each Holder of a Note shall be convertible into shares have the right, at such Holder’s option, to convert all or any portion of Common Stock at the option of the Holder, in whole or in part such Note by giving a notice at any time and from time on or before the 4th Business Day preceding the Fundamental Change Repurchase Date (the “Conversion Notice”) relating to such Fundamental Change (the “Fundamental Change Conversion Cut-off Day”); provided that a Holder that, pursuant to Section 8.01, has exercised its Repurchase Option in connection with such Fundamental Change shall not be entitled to exercise this conversion right unless it irrevocably withdraws its election to exercise such Repurchase Option pursuant to Section 8.02 or the following proviso applies; provided further, that if a Mandatory Conversion Election has been made pursuant to Section 9.02(b), then any Holder that has not exercised this conversion right by the Fundamental Change Conversion Cut-off Day shall be deemed to have irrevocably exercised such conversion right as of 5:00 pm, New York time, after on the Original Issue Date Fundamental Change Conversion Cut-off Day and, if such Holder has previously elected to exercise its Repurchase Option pursuant to Section 8.01, then such Repurchase Option election shall as of such time be deemed automatically withdrawn, void and of no further force and effect.
(subject to b) Without limiting the limitations on conversion set forth in rights provided under Section 4(a)(ii) hereof12.01(a). The number of shares of Common Stock issuable upon , if a conversion hereunder shall be determined by adding the sum of Scenario 1 Final Equity Distribution or a Scenario 2 Final Equity Distribution occurs (i) each Holder of a Series 1 Note shall have the quotient obtained right, at such Holder’s option, to convert all or any portion of such Note by dividing (x) giving a Conversion Notice at any time during the outstanding principal amount of this Debenture to be converted and (y) the Final Conversion Price (as defined herein)Period, and (ii) each Holder of a Series 2 Note shall have the amount equal right, at such Holder’s option, to convert all or any portion of such Note by giving a Conversion Notice at any time during the Final Conversion Period.
(Ic) Notes converted under Section 12.01(a) shall cease to accrue interest on the product 30th day preceding the occurrence of (xthe relevant Fundamental Change. Notes converted under Section 12.01(b) shall cease to accrue interest on the outstanding first day of the Final Conversion Period. The accrued and unpaid interest on any Note being converted shall be added to the principal amount of this Debenture to be converted and such Note being converted.
(yd) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days For each Note properly tendered for which such principal amount was outstandingconversion hereunder, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant issue and deliver to the terms hereof, subsection (ii) shall not be used in the calculation of the converting Holder a number of shares equal to the Note Conversion Amount divided by the applicable Conversion Price (plus cash in lieu of fractional shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number in accordance with Section 12.03 and adjusted pro rata for amounts being converted in integral multiples of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof$1.00). The Holder Company shall effect conversions by delivering cause such issuance and delivery of shares issuable upon conversion to be made promptly and in no event later than fifteen (15) days following the Company a completed notice substantially in the form attached hereto as Exhibit A (a "applicable Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture Calculation Date; provided that such issuance and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, delivery shall be irrevocable. Conversions hereunder shall have contingent on the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.Holder’s compliance with Section 12.01
Appears in 2 contracts
Sources: Supplemental Indenture, Indenture
Conversion. (i) Conversion at Option of Holder.
(A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (as defined in Section 4) (subject to the limitations on conversion set forth in Section 4(a)(ii3(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) equals the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and by (y) the Conversion Price (as defined hereinin Section 3(c)(i), and ). The Obligor shall deliver Common Stock certificates to the Holder prior to the Fifth (ii5th) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Trading Day after a Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
: (1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay principal and interest hereunder in shares of Common Stock;
; (2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
; (43) the Company Obligor has failed to timely satisfy its conversion obligations hereunderconversion; or
or (54) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(iiSection 3(a)(ii), then, at the Company may not pay interest option of the Holder, the Obligor, in kind and must pay interest in cash by deliveringlieu of delivering shares of Common Stock pursuant to Section 3(a)(i)(A), shall deliver, within three (3) Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted plus any interest due therein divided by the Conversion Price and multiplied by the highest closing price of the stock from date of the conversion notice till the date that such cash payment is made. Further, if the Obligor shall not have delivered any cash due in respect of conversion of this Debenture or as payment of interest thereon by the fifth (5th) Trading Day after the Conversion Date, the Holder may, by notice to the Obligor, require the Obligor to issue shares of Common Stock pursuant to Section 3(c), except that for such purpose the Conversion Price applicable thereto shall be the lesser of the Conversion Price on such the Conversion Date and (b) the product Conversion Price on the date of (x) such Holder demand. Any such shares will be subject to the quotient obtained by dividing .12 by 360 and (y) the number provisions of days for which such principal amount was outstandingthis Section.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company Obligor a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company Obligor in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company Obligor shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Secured Convertible Debenture (Power Technology Inc/Cn), Debenture Agreement (In Veritas Medical Diagnostics, Inc.)
Conversion. (AThe conversion price for any conversion pursuant to Section 2.7(a) This Debenture shall be convertible the lowest nominal or effective price per share paid by the Other Investors who purchase such Convertible Preferred Stock (with the exception of shares issuable upon exercise of the Bridge Warrants). The conversion price for any conversion into any Equity or Debt Security pursuant to Section 2.7(b) shall be the lowest of (i) the lowest nominal or effective price per share paid by any investor at any time on or after the date one year prior to the execution of this Agreement (with the exception of (x) purchases of up to 35,000 shares of the Company's Common Stock, $0.001 par value ("COMMON STOCK") pursuant to certain options to purchase, at a purchase price of $0.0001, that were outstanding on the Effective Date of this Agreement and held by members of the Board of Directors, as set forth in Schedule 2.7(d), and (y) shares issuable upon the exercise of the Bridge Warrants, each of which shall be excluded from consideration under this section), (ii) the lowest nominal or effective price at which any investor is entitled to acquire shares (including, without limitation, through purchase, exchange, conversion or exercise) pursuant to any other security, instrument, or promise, undertaking, commitment, agreement or letter of intent of the Company outstanding on or after the Effective Date of this Agreement or granted, issued, extended or otherwise made available by the Company at any time on or after the date one year prior to the Effective Date of this Agreement (regardless of whether currently exercisable or convertible) (with the exception of (x) certain options to purchase up to 35,000 shares of Common Stock at a purchase price of $0.0001 that were outstanding on the option Effective Date of this Agreement and held by members of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion Board of Directors as set forth in Section 4(a)(ii) hereofSchedule 2.7(d). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted , and (y) the Conversion Price Bridge Warrants, each of which shall be excluded from consideration under this section); and (as defined hereiniii) the lesser of $0.10 per share or 35% discount to the average closing price per share of the Common Stock during any twenty consecutive trading days (beginning with the twenty consecutive trading days prior to the date of execution of this Agreement); provided, and however, that in no event shall the price per share calculated pursuant to this clause (iii) be less than $.04 per share. The calculation required by clause (ii) the amount equal to (Ihereof shall initially be based upon Schedule 2.7(d) the product of (x) the outstanding principal amount of this Debenture to be converted hereto. All other rights, preferences, privileges, terms and (y) the product of (1) the quotient obtained conditions received by dividing .12 Investor in connection with any conversion and/or any securities issued by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company to Investor upon conversion, shall have timely elected be no less favorable to pay Investor than the interest due on a Conversion Date rights, preferences, privileges, terms and conditions any other investor in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed received or is entitled to timely satisfy its receive with respect to the security into which Investor is converting pursuant to any other security, instrument, promise, undertaking, commitment, agreement or letter of intent of the Company, whether or not such rights, preferences, privileges, terms and conditions for any other investor are incorporated into the agreements or documents relating to any conversion obligations hereunder; or
(5) the or any issuance of such shares the security or other instrument to that investor or are provided separately, at any time on or after one year prior to the execution of Common Stock would result in a violation of Sections 4(a)(ii), thenthis Agreement. In regard to each conversion hereunder, the Company may not pay interest in kind hereby agrees to take and/or arrange for all necessary corporate and must pay interest in cash by delivering, within three Trading Days related action to enable the execution of each applicable Conversion Datesuch conversion elected by Investor. Except as set forth on Schedule 2.7(d) hereto, an amount in cash equal no subscription, warrant, option, convertible security, or other right (direct or indirect, contingent or otherwise) to the product of (a) the outstanding principal amount purchase or otherwise acquire any equity securities of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.Company
Appears in 2 contracts
Sources: Recapitalization Agreement (Northwest Biotherapeutics Inc), Recapitalization Agreement (Toucan Capital Fund II, LP)
Conversion. a. In connection with the Closing of the Merger Agreement and on the Closing Date, at the election of the Lender, all of the outstanding principal balance hereunder and the accrued interest thereon (Athe “Conversion Balance”) This Debenture shall be convertible converted into a number of fully paid and nonassessable shares of the Borrower’s Common Stock equal to the quotient of the Conversion Balance divided by the Per Share Merger Consideration (as defined in Merger Agreement).
b. To convert the Conversion Balance into shares of Common Stock on the Closing Date, the Lender shall transmit by electronic mail at least three (3) Business Days prior to the option Closing Date, a copy of an executed notice of conversion (the “Conversion Notice”) to the Borrower. On the Closing Date, the Borrower shall issue and deliver to the address as specified in the Conversion Notice, a certificate, registered in the name of the HolderLender, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderto which the Lender shall be entitled.
(B) Notwithstanding anything c. The Borrower shall not issue any fractional shares hereunder but instead shall round up or down any fractional shares as a result of the foregoing calculation to the contrary contained hereinnearest whole share.
d. Upon any such conversion, if on this Note shall be deemed cancelled and shall be of no further force and effect, all indebtedness, liabilities and obligations owed by the Borrower under this Note shall be deemed to be satisfied and discharged in full and the Borrower will not be indebted to the Lender for any Conversion Date:
(1) reason under this Note, such cancellation, satisfaction and discharge to be deemed to be effective automatically upon such conversion without the number necessity of shares of Common Stock any further action by the Lender, the Borrower or any other person or entity; provided that the Lender shall surrender this Note to the Borrower for cancellation at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to or provide an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal indemnification undertaking reasonably satisfactory to the product of (a) the outstanding principal amount of the Debentures Borrower with respect to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially this Note in the form attached hereto as Exhibit A (a "Conversion Notice"case of its loss, theft or destruction). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Secured Convertible Promissory Note (Ideanomics, Inc.), Secured Convertible Promissory Note (Ideanomics, Inc.)
Conversion. (Aa) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion Except as set forth in Section 4(a)(ii3.16(a) hereof). The of the Loan Agreement, this Note may be converted into that number of shares of Common Stock issuable (rounded down to the nearest whole share) determined by dividing the Principal Amount (excluding interest) of this Note by $0.15 (the “Conversion Price”), subject to adjustment below, at any time upon the election of the Holder hereof as described in and subject to the conditions set forth in Section 1(c) of the Schedule to the Loan Agreement (the “Holder Conversion”) and upon the election of Maker as described in and subject to the conditions set forth in Section 1(e) of the Schedule to the Loan Agreement (the “Holder Conversion”), all in accordance with and subject to the terms and conditions of the Loan Agreement (each a conversion hereunder “Conversion Event”).
(b) As soon as practicable after the occurrence of a Conversion Event, and in any event within the time periods specified in Section 1(c) of the Schedule to the Loan Agreement, Maker at its expense will cause to be issued in the name of and delivered to Holder, a certificate or certificates for the number of shares of Conversion Stock to which Holder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount entitled on such conversion. No fractional Conversion Stock shall be issued on conversion of this Debenture to be converted and (y) Note. If on conversion of this Note a fraction of a share of Conversion Stock results, Maker will pay the cash value of that fractional share based on the Conversion Price then in effect.
(as defined herein), c) From and (ii) after the amount equal to (I) the product occurrence of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereofEvent, subsection (ii) Maker shall not be used in the calculation reserve and keep available out of the its authorized but unissued Common Stock such number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to timetime be sufficient to effect conversion of this Note and all other Notes. Maker will not, after by amendment of its Certificate of Incorporation or through any reorganization, recapitalization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, dividend or other distribution of cash or property, or any other voluntary action, avoid or seek to avoid the Original Issue Date (subject observance or performance of any of the terms to the limitations on conversion set forth be observed or performed hereunder by Maker, but will at all times in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially good faith assist in the form attached hereto carrying out of all the provisions hereof, and in the taking of all such action as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not may be required to physically surrender this Debenture to the Company necessary or appropriate in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have protect the effect conversion rights of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest erroras set forth herein against impairment.
Appears in 2 contracts
Sources: Loan and Security Agreement (Healthcare Corp of America), Loan and Security Agreement (Healthcare Corp of America)
Conversion. 3.1 This Note, along with all accrued and unpaid interest, will be converted into Conversion Shares on the date (Athe “Conversion Date”) This Debenture shall be convertible into shares that the Company’s registration statement on Form S-1 filed in connection with the proposed acquisition of Common Stock at Virurl Inc. as set out in Letter of Intent dated April , 2014 (the option “Letter of Intent”), is declared effective by the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). Securities Exchange Commission.
3.2 The number of shares of Common Stock Conversion Shares issuable upon a conversion hereunder of the Principal Amount under this Note shall be determined by adding the sum of (i) the quotient obtained by dividing (x) by (y) where (x) is equal to the Principal Amount and (y) is the Conversion Price (as hereinafter defined).
3.3 The number of Conversion Shares issuable upon a conversion of any accrued and outstanding principal interest on this Note (the “Accrued Interest”) shall be determined by the quotient obtained by dividing (x) by (y) where (x) is equal to the amount of this Debenture Accrued Interest to be converted and (y) is the Conversion Price.
3.4 Not later than five Trading Days after any Conversion Date, the Company will deliver to the Holder a certificate or certificates representing the Conversion Shares (bearing such legends as may be required by applicable law and those required by the Subscription Agreement) representing the aggregate number of Conversion Shares being acquired.
3.5 The conversion price (the “Conversion Price”) in effect on the Conversion Date shall be equal to $0.125 per share.
3.6 The Company covenants that it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock such number of shares as is necessary in order to ensure that a sufficient number are available for the purpose of issuance of Conversion Shares upon conversion of this Note, free from pre-emptive rights or any other actual contingent purchase rights of Persons other than the Holder. The Company covenants that all Conversion Shares shall, upon issue, be duly and validly authorized, issued and fully paid and non-assessable.
3.7 Upon a conversion hereunder, the Company shall not be required to issue stock certificates representing fractions of any Conversion Shares, and the number of Conversion Shares shall be rounded down to the nearest whole number.
3.8 If the Company, at any time while this Note is outstanding: (A) pays a stock dividend or otherwise makes a distribution or distributions in shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock, (B) subdivides outstanding shares of Common Stock into a larger number of shares, (C) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (D) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then the Conversion Price (as defined herein), and (ii) shall be multiplied by a fraction of which the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to numerator shall be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained hereinexcluding treasury shares, if on any Conversion Date:
(1any) outstanding before such event and of which the denominator shall be the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for outstanding after such conversion (including any interest payable in shares) (x) are not registered for resale event. Any adjustment made pursuant to an this Section shall become effective Underlying Shares Registration Statement immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and (y) may not be sold without volume restrictions pursuant shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
3.9 The Holder acknowledges and agrees that it is a condition to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and Shares that all Conversion Shares will be placed into escrow with ▇▇▇▇▇ ▇▇▇▇▇▇ LLP for a period of 12 months from the date of such conversions. In the event of any dispute or discrepancy, the records issuance of the Conversion Shares subject to a Pooling Agreement (to be negotiated by the Company and the Holder shall in good faith and acting reasonably) to be controlling entered into between the Company and determinative the Holder in connection with and as a condition to the absence issuance of manifest errorthe Conversion Shares.
Appears in 2 contracts
Sources: Private Placement Subscription Agreement (REVENUE.COM Corp), Private Placement Subscription Agreement (REVENUE.COM Corp)
Conversion. (i) Conversion at Option of Holder. ----------------------------------
(A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (as defined in Section 4) (subject to the limitations on conversion set forth in Section 4(a)(ii3(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) equals the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and by (y) the Conversion Price (as defined hereinin Section 3(c)(i), and ). The Obligor shall deliver Common Stock certificates to the Holder prior to the Fifth (ii5th) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Trading Day after a Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
: (1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay principal and interest hereunder in shares of Common Stock;
; (2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
; (43) the Company Obligor has failed to timely satisfy its conversion obligations hereunderconversion; or
or (54) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(iiSection 3(a)(ii), then, at the Company may not pay interest option of the Holder, the Obligor, in kind and must pay interest in cash by deliveringlieu of delivering shares of Common Stock pursuant to Section 3(a)(i)(A), shall deliver, within three (3) Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted plus any interest due therein divided by the Conversion Price and multiplied by the highest closing price of the stock from date of the conversion notice till the date that such cash payment is made. Further, if the Obligor shall not have delivered any cash due in respect of conversion of this Debenture or as payment of interest thereon by the fifth (5th) Trading Day after the Conversion Date, the Holder may, by notice to the Obligor, require the Obligor to issue shares of Common Stock pursuant to Section 3(c), except that for such purpose the Conversion Price applicable thereto shall be the lesser of the Conversion Price on such the Conversion Date and (b) the product Conversion Price on the date of (x) such Holder demand. Any such shares will be subject to the quotient obtained by dividing .12 by 360 and (y) the number provisions of days for which such principal amount was outstandingthis Section.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company Obligor a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion ---------- Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal ---------------- amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company Obligor in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company Obligor shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 2 contracts
Sources: Debenture Agreement (Ns8 Corp), Debenture Agreement (Ns8 Corp)
Conversion. (A) This Debenture shall be convertible into shares Each Investor participating in the Offer shall, immediately upon execution of Common Stock at this Agreement and prior to the option close of business on the business day immediately prior to any exercise of the Holderunderwriters' over-allotment option in the Offering (each such exercise of the over-allotment option, in whole or in part at any time and from time to timethe "Over-Allotment"), after the Original Issue Date (subject as applicable, deliver to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Custodian the certificate or certificates for the Series B Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted into Common Stock and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used sold in the calculation Offering or the Over-Allotment, as applicable, duly endorsed, together with written notice stating that such Investor elects to convert such Series B Stock, all in compliance with Section 6(a)(i)(A) of the number Certificate of shares Designations (each such delivery of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued certificates and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), thennotice, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The , and shall instruct the Custodian to deliver the Conversion Notice to the Company immediately upon receipt; PROVIDED, HOWEVER, that no shares of Series B Stock delivered to the Custodian shall be deemed surrendered by such Investor, or converted into shares of Common Stock, until immediately prior to the close of business on the day immediately prior to the day on which the Offering or the Over-Allotment, as applicable, is consummated; and PROVIDED FURTHER, HOWEVER, that if the underwriting agreement in connection with the Offering (the "Underwriting Agreement") is terminated, and the Offering or the Over-Allotment, as applicable, has not been consummated with respect to all of the shares of Common Stock proposed to be sold in the Offering and the Over-Allotment prior to the date of termination, (a) the surrender and conversion of the shares of Series B Stock subject to the Conversion Notice shall set forth the remaining principal amount of this Debenture be deemed null and all accrued and unpaid interest thereon subsequent void to the conversion at issue. The date on which a Conversion Notice is delivered is extent the "Conversion Date." Unless underlying shares of Common Stock have not been sold in the Holder is converting Offering or the entire principal amount outstanding under this DebentureOver-Allotment, as applicable (b) the Holder is not be required to physically surrender this Debenture parties hereto will deem the Offering or the Over-Allotment, as applicable, withdrawn to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall extent that such underlying shares of Common Stock have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made not been sold in the Conversion Notice. The Holder Offering or the Over-Allotment, as applicable, and (c) the Company shall maintain records showing return to the principal amount converted and appropriate Investor any certificate or certificates , or issue replacement certificates, representing shares of Series B Stock for which the date underlying shares of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative Common Stock were not sold in the absence of manifest errorOffering or the Over-Allotment, as applicable.
Appears in 1 contract
Sources: Conversion Agreement (Phillips Van Heusen Corp /De/)
Conversion. (A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) In the event that prior to the Maturity Date the European Medicines Agency issues marketing approval for Probuphine® (the date of such approval, the “Conversion Date”), then the outstanding principal amount of the Debentures Note together with all accrued but unpaid interest thereon shall automatically convert into fully paid and non-assessable shares (the “Conversion Shares”) of Borrower’s common stock, $.001 par value (the “Common Stock”) at a price per share equal to be converted the lower of (i) the closing price of the Common Stock as reported by the Nasdaq Stock Market (the “Closing Price”) on such the date hereof and (ii) the Closing Price on the Conversion Date (such price, the “Conversion Price”). Lender acknowledges, agrees and understands that as of the Conversion Date the Note shall be deemed converted and of no further force or effect.
(b) As soon as practicable after the product Conversion Date, Borrower shall issue and deliver to Lender confirmation of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which Conversion Shares that have been issued to Lender upon conversion of the Note. No fractional shares shall be issued upon conversion of the Note. If upon any conversion of the Note a fractional share of Borrower’s capital stock would otherwise result, then in lieu of such principal amount was outstandingfraction Borrower shall pay the cash value of that fractional share calculated on the basis of the applicable Conversion Price.
(Cc) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part f at any time and from time the number of Conversion Shares issuable upon conversion of the Note shall not be sufficient to timeeffect the conversion of this Note, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder Borrower shall effect conversions by delivering to the Company a completed notice substantially take such action as may, in the form attached hereto opinion of its counsel, be necessary to increase its authorized but unissued capital stock or other securities issuable upon conversion of the Note as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of sufficient for such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorpurpose.
Appears in 1 contract
Sources: Unsecured Convertible Loan Agreement (Titan Pharmaceuticals Inc)
Conversion. The entire principal amount of this Note and accrued interest on this Note may be converted, in the discretion of the Holder, on not more than sixty (A60) This Debenture shall be convertible into shares of Common Stock nor less than thirty (30) days’ notice to the Company, in whole, at the option of the Holder, in whole or in part Holder either (i) at any time prior to June 30, 2020, into shares of the Company’s Series E Senior Preferred Stock or (ii) into shares of the Company’s equity securities (the “Equity Securities”) issued and sold at the close of the Company’s next equity financing after November 28, 2017 in a single transaction or a series of related transactions yielding gross proceeds to the Company of at least $50,000,000.00 in the aggregate (excluding the value resulting from time the conversion of the Note) (the “Next Equity Financing”) consummated prior to timeJune 30, 2020. Such conversion right with respect to the Next Equity Financing shall expire if not exercised by the earlier of (x) the date that is three (3) months after the Original Issue Date closing of the Next Equity Financing, or (subject to the limitations on conversion set forth in Section 4(a)(iiy) hereof)June 30, 2020. The number of shares of Common Stock issuable Equity Securities to be issued upon a any such conversion hereunder shall be determined by adding the sum of (i) equal to the quotient obtained by dividing (x1) the outstanding entire principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained Note plus accrued interest by dividing .12 by 360 and (2) 100% of the number price per share of days for which such principal amount was outstandingthe Equity Securities issued in the Next Equity Financing, divided by (II) or, in the Conversion Price on case of the Conversion DateSeries E Senior Preferred Stock, providedat the then applicable conversion price per share provided in the Company’s Amended and Restated Certificate of Incorporation, that if the Company shall have timely elected to pay the interest due on a Conversion Date as amended, in cash pursuant each case, rounded to the terms hereofnearest whole share, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Equity Securities or Series E Senior Preferred Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on upon such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture conversion shall be convertible into shares of Common Stock at upon the option of the Holder, in whole or in part at any time terms and from time to time, after the Original Issue Date (subject to the limitations on conditions applicable to the Next Equity Financing, or, in the case of the Series E Senior Preferred Stock, in the Company’s Amended and Restated Certificate of Incorporation. Upon such conversion set forth in Section 4(a)(ii) hereof). The of this Note with respect to the Next Equity Financing, the Holder shall effect conversions by delivering hereby agrees to execute and deliver to the Company all transaction documents related to the Next Equity Financing, including a completed notice substantially purchase agreement and other ancillary agreements, with customary representations and warranties and transfer restrictions (including a lock-up agreement in connection with an initial public offering), and having terms and conditions not less favorable to the Holder than those contained in the form attached hereto agreements as Exhibit A (a "Conversion Notice")may be entered into by the other purchasers of the Equity Securities in the Next Equity Financing. The Conversion Notice This Note shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent cease to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding be convertible under this Debenture, Section 3 upon the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect occurrence of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made a “Qualified Public Offering” as defined in the Conversion Notice. The Holder Amended and the Company shall maintain records showing the principal amount converted and the date Restated Certificate of such conversions. In the event of any dispute or discrepancyIncorporation, the records as amended, of the Holder shall be controlling and determinative in the absence of manifest errorCompany.
Appears in 1 contract
Sources: Convertible Promissory Note (New Beginnings Acquisition Corp.)
Conversion. (A) This Debenture shall be convertible into shares of Common Stock at 1.1 On the option basis of the Holder, in whole or in part at any time representations and from time to time, after the Original Issue Date (warranties and subject to the limitations on conversion terms and conditions set forth herein, Chrysler Enterprises Ltd. (the "Investor") hereby irrevocably converts the loan amount of US$500,000 (the “Loan Amount”), loaned by the Investor to the Company pursuant to the Loan Agreement between the Investor and the Company dated September 2, 2009 (the “Loan Agreement”), into 1,000,000 units (the "Units") at a price per Unit of US$0.50 (such conversion of the Loan Amount into Units being the "Conversion").
1.2 Each Unit will consist of: (i) one share in Section 4(a)(iithe common stock of the Company (each, a "Share"); (ii) hereofone non-transferable common stock purchase warrant (each, an "A Warrant") entitling the holder thereof to purchase one Share (each, a "Warrant A Share"), as presently constituted, for a period of two years commencing on the Effective Date, at a price per Warrant A Share of US$0.60; and (iii) one non-transferable common stock purchase warrant (each, a "B Warrant" and, together with the A Warrants, the "Warrants") entitling the holder thereof to purchase one Share (each, a "Warrant B Share" and, together with the Warrant A Shares, the "Warrant Shares"), as presently constituted, for a period of two years commencing on the Effective Date, at a price per Warrant B Share of US$0.70. Certificate(s) representing the A Warrants will be in the form attached as Exhibit "A" hereto and certificate(s) representing the B Warrants will be in the form attached as Exhibit "B" hereto. The number Shares, Warrants and the Warrant Shares are collectively referred to as the "Securities".
1.3 On the basis of shares the representations and warranties and subject to the terms and conditions set forth herein, the Company hereby irrevocably agrees to the conversion of Common Stock issuable the Loan Amount into the Units.
1.4 Investor agrees that upon a the conversion hereunder shall be determined by adding of the sum Loan Amount into Units pursuant to the terms of this Agreement (i) the quotient obtained by dividing (x) the outstanding principal amount Loan Agreement shall be null and void and of this Debenture to be converted and (y) the Conversion Price (as defined herein)no further effect, and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstandingLoan Amount, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once giveninterest, shall be irrevocable. Conversions hereunder shall considered to have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon been repaid in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorfull.
Appears in 1 contract
Conversion. (Aa) This At the option of the Holder. The principal amount of this Secured Debenture shall be then outstanding is convertible into shares of Common Stock at the Conversion Price (subject to limitations set forth in Section 6(d)), at the option of the Holder, in whole or in part at any time and from time to time, time from and after the Original Issue Date (subject Date. Holders shall effect conversions under this Section 6(a), by delivering to the limitations on conversion set forth Company a Holder Conversion Notice together with a schedule in Section 4(a)(ii) hereofthe form of Schedule 1 attached hereto (the "Conversion Schedule"). The number of shares of Common Stock Underlying Shares issuable upon a any conversion hereunder shall be determined by adding the sum of (isubject to limitations set forth in Section 6(d)) the quotient obtained by dividing (x) equal the outstanding principal amount of this Secured Debenture to be converted divided by the Initial Conversion Price. If the Holder is converting less than all of the principal amount represented by this Secured Debenture, or if a conversion hereunder may not be effected in full due to the application of Section 6(d)(i), the Company shall honor such conversion to the extent permissible hereunder and shall promptly deliver to the Holder a Conversion Schedule indicating the principal amount which has not been converted.
(b) At the option of the Company. Subject to the conditions set forth in this Section 6(b) and Section 6(d), at any time after the first year anniversary of the Original Issue Date, the Company may require a conversion, at the Conversion Price and on the Company Conversion Date, of all or a portion of the outstanding principal amount of this Secured Debenture if: (i) both: (A) the average of the Closing Prices during any 30 consecutive Trading Days is equal to or greater than $5.10 (subject to equitable adjustments for stock splits, recapitalizations and similar events) and (B) the Closing Price for each of 15 Trading Days (which need not be consecutive) during such 30 consecutive Trading Day period is equal to or greater than $5.10 (subject to equitable adjustments for stock splits, recapitalizations and similar events) and (ii) all of the Equity Conditions are satisfied as of the Company Conversion Date with respect to all of the Underlying Shares potentially issuable in connection with such proposed conversion. The Company shall exercise its right to require conversions hereunder by delivering to the Holder a Company Conversion Notice together with a Conversion Schedule within 10 Business Days of the satisfaction of the condition set forth in clause (i) of the immediately preceding sentence. Notwithstanding anything herein to the contrary, if any of the conditions set forth in clauses (i) and (ii) herein shall cease to be in effect during the period between the date of the delivery of the Company Conversion Notice and the Company Conversion Date, then the Holder subject to such conversion may elect, by written notice to the Company given at any time after any such conditions shall cease to be in effect, to invalidate ab initio such conversion. The number of Underlying Shares issuable upon any conversion hereunder shall (subject to limitations set forth in Section 6(d)) equal the outstanding principal amount of this Secured Debenture to be converted (including any interest payments accreted to principal pursuant to the terms hereof) divided by the Initial Conversion Price. The conversion subject to each Company Conversion Notice, once given, shall be irrevocable as to the Company. If the conversion of a principal amount of Secured Debentures indicated in a Company Conversion Notice would result in the issuance to the Holder of Underlying Shares in excess of the amount permitted pursuant to Section 6(d)(i), the Holder shall notify the Company of this fact and the Company shall: (x) honor the conversion for the maximum principal amount of Secured Debentures permitted, pursuant to Section 6(d)(i), to be converted on such Company Conversion Date and (y) cancel the Company Conversion Notice with respect to the portion of the principal amount of Secured Debentures the conversion of which would violate Section 6(d)(i). Notwithstanding anything herein to the contrary, the Company shall not be entitled to deliver a Company Conversion Notice prior to the 10th Business Day following the delivery of a Company Conversion Notice pursuant to any Debenture.
(c) Company's option to adjust Conversion Price and force conversion. At any time and from time to time after the date the Registration Statement covering the resale of the Underlying Shares issuable upon conversion of the Secured Debentures has been declared effective by the Commission, the Company shall have the option, upon the delivery of an Adjustment Notice to the Holder, to adjust the Conversion Price then in effect with respect to the Mandatory Convertible Amount applicable to such Adjustment Notice to equal the lesser of: (as defined herein), A) the Initial Conversion Price and (ii) the amount equal to (IB) the product of (x) the outstanding principal amount of this Debenture to be converted applicable Adjustment Percentage and (y) the product Index Price. Subject to the terms hereof (including, without limitation, Section 6(d)(i)), on each Adjustment Date immediately following the delivery of (1) an Adjustment Notice, the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) applicable Mandatory Convertible Amount shall be converted into Underlying Shares at the Conversion Price as adjusted on such Adjustment Date pursuant to the Conversion Dateterms of the immediately preceding sentence, provided, that such conversion shall only occur if all of the Equity Conditions are satisfied as of the Adjustment Date with respect to all of the Underlying Shares potentially issuable in connection with such proposed conversion. Notwithstanding anything herein to the contrary, the Company shall have timely elected not be entitled to pay deliver an Adjustment Notice prior to the interest due on tenth (10th) Trading Day immediately following the immediately preceding Delivery Date hereunder or a Conversion Date delivery date under any Debenture. If a conversion of the Mandatory Convertible Amount would result in cash the issuance to the Holder of Underlying Shares in excess of the amount permitted pursuant to Section 6(d)(i), the terms hereof, subsection (ii) Holder shall not be used in notify the calculation Company of this fact and the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) Company shall: (x) are not registered honor the conversion for resale the maximum principal amount of Secured Debentures permitted, pursuant to an effective Underlying Shares Registration Statement Section 6(d)(i), to be converted on the applicable Adjustment Date and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under cancel the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount portion of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to Mandatory Convertible Amount the conversion at issue. The date on of which a Conversion Notice is delivered is the "Conversion Datewould violate Section 6(d)(i)." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Conversion. (A) This Debenture shall The OID may be convertible into shares of Common Stock converted on the Maturity Date, at the option of the HolderLender, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option common stock of the Holder, in whole or in part Borrower at any time and from time to time, after the Original Issue Date (subject to the limitations on a conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions price of $0.10 per share by delivering to the Company Borrower of a completed notice substantially of conversion in the form attached hereto as Exhibit A D (a "the “Conversion Notice")”) on the Maturity Date. The delivery of the Conversion Notice duly executed by the Lender shall set forth be deemed to constitute a contract between the remaining principal amount Lender and the Borrower whereby (i) the Lender subscribes for the number of this Debenture and shares to which the Lender shall be entitled to receive upon such conversion, (ii) the Lender releases, upon receipt of the shares issued in respect of the conversion, the Borrower from all accrued and unpaid interest liability thereon subsequent or from all liability with respect to the OID converted, and (iii) the Borrower agrees that the surrender of the OID for conversion at issueconstitutes full payment of the subscription price for the shares issuable on such conversion and that such shares will be issued as fully paid and non-assessable shares of the Borrower. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this DebentureNotwithstanding anything herein contained, the Holder is not Borrower shall in no case be required to physically surrender issue fractional shares or to pay any cash adjustment in lieu of any fractional share upon the conversion of this Debenture Note. Any fractions will be rounded to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect nearest whole number with fractions of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal one-half or greater being rounded to the applicable conversion, which shall be evidenced by notations made in next higher whole number and fractions of less than one-half being rounded to the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errornext lower whole number.
Appears in 1 contract
Conversion. (i) Conversion at Option of Holder.
(A) This Debenture shall ------------------------------ be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii4(a)(iii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if -------- the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) after the Underlying Shares issuable for Interest Effectiveness Date (as defined in Section 6) such conversion (including any interest payable in shares) shares of Common Stock (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6), as determined by counsel to the Company pursuant to a written opinion letter, addressed to the Company's transfer agent in the form and substance acceptable to the applicable Holder and such transfer agent (if the shares of Common Stock are permitted by the Holder to be delivered under this clause (2) prior to the Effectiveness Date (as defined in the Registration Rights Agreement) and thereafter an Underlying Shares Registration Statement shall be declared effective by the Commission, the Company shall, within five Trading Days after the date of such declaration of effectiveness, exchange such shares for shares of Common Stock that are free of restrictive legends of any kind);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii4(a)(iii), then, at the Company may not pay interest option of the Holder, the Company, in kind and must pay interest in cash by deliveringlieu of delivering shares of Common Stock pursuant to Section 4(a)(i)(A)(ii), shall deliver, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering surrendering the Debentures (or such portions thereof) to the Company a completed notice substantially in be converted, together with the form of conversion notice attached hereto as Exhibit A (a "Conversion Notice")) to the --------- ----------------- Company. The Each Conversion Notice shall set forth specify the remaining principal amount of this Debenture Debentures to be converted and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a such conversion is to be effected, which date may not be prior to the date such Conversion Notice is deemed to have been delivered is the hereunder (a "Conversion Date." Unless the Holder "). If no Conversion Date is converting the entire principal amount outstanding under this Debenturespecified in --------------- a Conversion Notice, the Holder Conversion Date shall be the date that such Conversion Notice is not be required to physically surrender this Debenture to the Company in order to effect conversionsdeemed delivered hereunder. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have If the effect Holder is converting less than all of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to represented by the applicable conversion, which shall be evidenced Debenture(s) tendered by notations made in the Holder with the Conversion Notice. The Holder and , or if a conversion hereunder cannot be effected in full for any reason, the Company shall maintain records showing honor such conversion to the extent permissible hereunder and shall promptly deliver to such Holder (in the manner and within the time set forth in Section 4(b)) a new Debenture for such principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest erroras has not been converted.
Appears in 1 contract
Sources: Convertible Debenture (Aquatic Cellulose International Corp)
Conversion. (Aa) This Debenture shall be convertible The holder of this Security is entitled at any time on or after March 21, 2002 and before the close of business on March 21, 2006 (or, in case the holder hereof has exercised his right to require the Company to repurchase this Security or a portion hereof pursuant to Section 3 hereof, then in respect of this Security or such portion hereof, as the case may be, until and including, but (unless the Company defaults in making the payment due upon repurchase) not after, the close of business on the Repurchase Date) to convert this Security (or any portion of the principal amount hereof that is an integral multiple of $1,000), into fully paid and nonassessable shares (calculated as to each conversion to the nearest 1/100 of a share) of Common Stock of the Company at the rate of 116.9152 shares of Common Stock for each $1,000 principal amount of Security (or at the option current adjusted rate if an adjustment has been made as provided below) (the "Conversion Rate") by surrender of this Security, duly endorsed or assigned to the Company or in blank to the Company at the Designated Office, accompanied by written notice to the Company that the holder hereof elects to convert this Security (or if less than the entire principal amount hereof is to be converted, specifying the portion hereof to be converted). Notwithstanding the foregoing, unless the holder of this Security notifies the Company to the contrary, such holder shall be deemed for all purposes to have converted this Security, subject only to surrender of this Security against delivery of the Holder, in whole Shares and cash issuable upon such conversion (which surrender may take place before or in part at any time and from time to time, after the Original Issue Date (date of such deemed conversion, without affecting the availability thereof), immediately prior to the close of business on March 21, 2006, if the Closing Price of the Common Stock on the immediately preceding Trading Day exceeds 115% of the Conversion Price. Subject to Section 2(b) below, no payment or adjustment is to be made on conversion for dividends on the Common Stock issued on conversion hereof. No fractions of shares or scrip representing fractions of shares will be issued on conversion, but instead of any fractional interest, the Company shall pay a cash adjustment, computed on the basis of the Closing Price of the Common Stock on the date of conversion, or, at its option, the Company shall round up to the next higher whole share. Notwithstanding any other provision of this Security, the Company shall, if the holder so elects, deliver the shares of Common Stock issuable upon conversion of this Security to any third party designated in writing by the holder. Notwithstanding the foregoing, no holder of this Security that is subject to the limitations on conversion set forth restrictions of Section 4 of the Bank Holding Company Act of 1956, as amended (the "BHCA") (a "BHCA Person") shall have the right to convert this Security if, after giving effect to such conversion, the BHCA Person and its affiliates and transferees would own or be deemed to own shares of Common Stock in Section 4(a)(ii) hereof). The excess of either the maximum number of shares of Common Stock issuable upon which the BHCA Person is permitted to own under the BHCA and the regulations of the Board of Governors of the Federal Reserve System thereunder or such lower number as the relevant BHCA Person may have requested in writing to the Company. Any Security held by an assignee or transferee of a holder subject to the restriction on conversion hereunder in this paragraph shall continue to be determined by adding subject to the sum of same restriction on conversion unless such Security was assigned or transferred (i) to the quotient obtained by dividing (x) public in an offering registered under the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein)Securities Act, and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on in a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions transaction pursuant to Rule 144(k) promulgated 144 or 144A under the Securities Act in which no person acquires Securities convertible into more than 2% of the outstanding Common Stock, (as defined iii) in Section 6);
(3) a single transaction to a third party who acquires a majority of the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent without regard to the conversion at issueof any Security so transferred or, (iv) in any other manner permitted under the BHCA. The date Company may rely on the representation of the relevant BHCA Person that a transfer has been made in a manner which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under permits conversion of such Security. The holder of this DebentureSecurity, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once givenby acceptance thereof, shall be irrevocable. Conversions hereunder shall deemed to have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal agreed to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorforegoing restriction on transfers.
Appears in 1 contract
Conversion. (A1) This Debenture shall be convertible Provided that there are no unresolved claims for losses incurred by the Company pursuant to the indemnification provisions of Section 8 of the Purchase Agreement, the holder of this Security is entitled at any time after [12 MONTHS FROM CLOSING DATE], 2003 and from time to time before the close of business on the Maturity Date, to convert the principal amount of this Security (or any portion of the principal amount hereof that is an integral multiple of $1,000), into fully paid and nonassessable Common Stock (calculated as to each conversion to the nearest 1/100 of a share) of the Company at the rate of ________(1) shares of Common Stock for each $1,000 principal amount of Security (or at the option then current adjusted rate if an adjustment has been made as provided below) (the "Conversion Rate") by surrender of this Security, duly endorsed or assigned to the Company or in blank to the Company at the Designated Office, accompanied by written notice to the Company, in the form attached hereto, that the holder hereof elects to convert this Security (or if less than the entire principal amount hereof is to be converted, specifying the portion hereof to be converted). If the holder elects to exercise its conversion right hereunder, then the Company shall, within five (5) Business Days after receipt of written notice of such election, deliver or cause to be delivered to the holder at the address specified by the holder to the Company in the conversion notice a certificate or certificates for the Common Stock issued upon such conversion and any replacement Security issued as a result of any partial conversion of this Security.
(2) Upon surrender of this Security for conversion, the holder will be entitled to payment in cash within three (3) Business Days thereafter of the Holder, in whole or in part at any time and from time to time, after interest accrued on the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be Security then being converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal unpaid to (I) the product such date of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderconversion.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) Subject to Section 2(b) below, no payment or adjustment is to be made on conversion for dividends on the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations issued on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount No fractions of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date shares or scrip representing fractions of shares will be issued on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date but instead of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.any
Appears in 1 contract
Sources: Asset Purchase Agreement (Tekelec)
Conversion. (A) This Debenture 6.1 The Outstanding Loan Amount shall be convertible into shares of Common Stock at the option convert to Shares of the HolderBorrower (such date being the “Conversion Date”) unless agreed otherwise in writing by the Lender, in whole or in part at any time and from time to time, automatically on the Listing Date.
6.2 As soon as practicable after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due and in any event on a Conversion Date in cash pursuant or prior to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Listing Date:
6.2.1 the Borrower shall issue to the Lender (1or its nominee) the that number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, fully paid Shares that is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) Conversion Amount divided by the outstanding principal amount Conversion Price, rounded upwards if necessary to the nearest whole Share:
6.2.2 the Borrower shall enter the name of the Debentures Lender (or its nominee) in its register of shareholders as the owner of those Shares;
6.2.3 the Borrower shall file a Form SH01 at Companies House in respect of the Shares being issued; and
6.2.4 the Borrower shall send a share certificate evidencing those Shares to be converted on such Conversion Date and the Lender (b) or its nominee),
6.3 If the product Borrower complies with all of (x) its obligations under this clause 6, the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture Loan shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions reduced by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversionConversion Amount.
6.4 The Borrower shall procure that it has sufficient unissued Shares and all necessary shareholder consents and approvals as may be required to issue Shares to the Lender pursuant to this clause 6.
6.5 If the Borrower makes:
6.5.1.1 an issue of shares by way of capitalisation of profits or reserves (including any share premium account or capital redemption reserve to the holders of Shares);
6.5.1.2 a sub-division or consolidation of Shares;
6.5.1.3 a distribution in specie;
6.5.1.4 a repayment, which return or distribution of capital (including a distribution of capital profits (whether realised or not) or capital reserves); or
6.5.1.5 any event similar to those described in the preceding paragraphs occurs, then the Conversion Price shall be evidenced adjusted in such manner as determined in good faith by notations made the Borrower to ensure that the Lender obtains the same economic benefit in the Conversion Notice. The Holder event that it exercises its conversion right under this Clause, as it would have done but for that event.
6.6 Where the Outstanding Loan Amount is converted into Shares in accordance with this clause 6, such conversion shall constitute a full and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records final discharge of the Holder shall be controlling and determinative in Borrower’s obligation to repay the absence of manifest errorrelevant Conversion Amount.
Appears in 1 contract
Conversion. (Aa) This Debenture shall be convertible into shares of Common Stock at At the option of (x) the Holder, at any time after the first anniversary of the Closing Date or any time prior to such first anniversary following either the Company's issuance of a notice to redeem the Notes pursuant to Section 2 or the occurrence and continuance of an Event of Default (as defined below) or (y) the Company, if the closing price of the Common Stock, par value $.0033 per share (the "Common Stock"), of the Company, shall be equal to or in excess of $20.00 per share for any twenty Trading Days (as defined below) in any thirty Trading Day period, the Notes, in whole or in part at any time and from time to timepart, after may be converted on the Original Issue Conversion Date (subject as defined below) at the principal amount thereof, into fully paid and nonassessable shares (calculated as to each conversion to the limitations nearest 1/100 of a share) of Common Stock including the associated Rights (as defined in the Note Purchase Agreement), at the Conversion Price (as defined below), in effect at the time of conversion; provided that, for the Company to exercise the right specified in clause (y) above, the Company must issue a Conversion Notice (as defined below) within twenty business days of the end of any such thirty Trading Day period. In the event that a Note is called for redemption pursuant to Section 2, such conversion right in respect of the Note shall expire at the close of business on conversion set forth in Section 4(a)(ii) hereof)the Redemption Date, unless the Company fails to make the payment due upon redemption. The price at which the number of shares of Common Stock issuable upon a conversion hereunder to be delivered shall be determined upon conversion shall be $3.33 per share of Common Stock (the "Conversion Price"). The Conversion Price shall be adjusted in certain instances as provided in paragraph (d) of this Section 3.
(b) If either the Holder or the Company elects to convert the Notes, the Holder or the Company, as the case may be, shall provide written notice (the "Conversion Notice") to the Company (at the Company's address) or the Holders (to each Holder's address as it appears on the register), as applicable, which states that such party elects to convert such Note. In the event that the Company elects to convert the Notes, the Conversion Notice shall include a certification by adding the Company that each of the conditions set forth in Section 3(f) will be satisfied as of the Conversion Date. In order to exchange the securities, the Holder shall surrender the Notes, duly endorsed or assigned to the Company or in blank. If the Holder elects to convert the Notes, upon notice to the Company thereof the Company shall use its best efforts to cause the conditions set forth in Section 3(f)(ii) through (v) to be satisfied as promptly as possible thereafter. Each conversion shall be deemed to have been effected immediately prior to the close of business on the date all of the conditions set forth in Section 3(f) have been satisfied or waived by the Holder (the "Conversion Date"). If such day is not a business day, and a day on which the principal national securities exchange or market quotation system on which the Common Stock is then listed or admitted for trading is open (a "Trading Day"), then such conversion will be deemed to have been effected on the next succeeding Trading Day. As promptly as practicable on or after the Conversion Date, the Company shall issue and deliver the certificates representing the
(c) No fractional shares of Common Stock shall be issued upon conversion of Notes. Instead of any fractional share of Common Stock which would otherwise be issuable upon conversion of any Note, the Company shall pay a cash adjustment in respect of such fraction in an amount equal to the same fraction of the market price per share of Common Stock at the close of business on the Conversion Date.
(d) The Conversion Price shall be subject to the following adjustments: (i) if, on any Conversion Date, 80% of the closing price on the trading day immediately preceding the Conversion Date is less than $3.33, then the Conversion Price shall be reduced to equal 80% of such closing price;
(ii) in case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective;
(iii) in case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination;
(iiv) in case the quotient obtained by dividing (x) Company shall issue rights or warrants to all holders of its Common Stock entitling than to subscribe for or purchase shares of Common Stock at a price per share less than the outstanding principal amount of this Debenture to be converted and (y) Conversion Price, the Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such rights or warrants shall be adjusted to such subscription or purchase price, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination;
(v) in case the Company shall issue Common Stock (other than shares of Common Stock issued upon exercise of rights, options and warrants outstanding as defined hereinof the date hereof), and or rights, options or warrants convertible into, or exchangeable or exercisable for, Common Stock to any third party, or shall reprice or adjust the conversion, exchange or exercise price of rights, options or warrants outstanding as of the date hereof, at or to a price per share of Common Stock less than the Conversion Price, the Conversion Price in effect at the opening of business on the day following the date of such issuance, repricing or adjustment shall be adjusted to such issue, conversion, exchange or exercise price, or in the case of a repricing or adjustment, such conversion, exchange or exercise price as so adjusted, such reduction to become effective immediately after the opening of business on the day following the date of such issuance, repricing or adjustment, as the case may be;
(iivi) in case the amount equal Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness or assets (Iincluding securities, but excluding any rights or warrants referred to in clause (iv) the product of (x) the outstanding principal amount of this Debenture Section, any dividend or distribution paid in cash out of the retained earnings of the Company and any dividend or distribution referred to in clause (iii) of this Section), the Conversion Price in effect at the opening of business on the date fixed for the determination of stockholders entitled to receive such distribution shall be converted and (y) adjusted so that the product same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the close of (1) business on the quotient obtained date fixed for the determination of stockholders entitled to receive such distribution by dividing .12 by 360 and (2) a fraction of which the number of days for which such principal amount was outstanding, divided by (II) numerator shall be the Conversion Price on the date fixed for such determination less the then fair market value of the portion of the assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such Conversion DatePrice, provided, that if the Company shall have timely elected such adjustment to pay the interest due on a Conversion Date in cash pursuant become effective immediately prior to the terms hereofopening of business on the day following the date fixed for such determination: and
(vii) the reclassification of Common Stock into securities including other than Common Stock shall be deemed to involve (A) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of clause (vi) of this Section) and (B) a subdivision or combination, subsection (ii) shall not be used in as the calculation case may be, of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything outstanding immediately prior to the contrary contained herein, if on any Conversion Date:
(1) such reclassification into the number of shares of Common Stock at outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of clause (ii) of this Section). (e) Whenever the Conversion Price is adjusted pursuant to Section 3(d):
(i) the Company shall compute the adjusted Conversion Price and shall prepare a certificate signed by the Company setting forth the adjusted Conversion Price showing in reasonable detail the facts upon which such adjustment is based; and (ii) a notice stating that the Conversion Price has been adjusted and setting forth the adjusted Conversion Price shall forthwith be required, and as soon as practicable after it is required (together with a copy of the certificate referred to in clause (i) above) such notice shall be mailed by the Company to all Holders.
(f) The Company's right to convert the Notes shall be subject to satisfaction of each of the following conditions:
(i) no Event of Default (as defined below) and no condition or event which, with the giving of notice or lapse of time authorizedor both would, unissued and unreserved for all purposesunless cured or waived, or held as treasury stockbecome an Event of Default, is insufficient to pay interest hereunder in shares of Common Stockshall have occurred;
(2ii) consummation of the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are shall not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii)any law, thenregulation, judgment, injunction, order or decree applicable to the Company may not pay interest in kind and must pay interest in cash or any Holder;
(iii) all Common Stock held by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount any Holder as of the Debentures to be converted on such Conversion Date and to be held by such Holder as a result of the conversion shall not, on the Conversion Date or thereafter, be subject to any limitation or restriction on such Holder's ability or right to hold, vote, transfer, dispose or take any other action with respect to such Common Stock (bother than any such limitation or restriction arising as a result of the requirements of the Securities Act of 1933, as amended, or as a result of agreements of such Holder with third parties);
(iv) all filings with, and all approvals, consents and actions by any Person necessary to exempt any Reserved Shares (as defined in the product Purchase Agreement) issued upon conversion of the Notes held by such Holder as of the Conversion Date and to be held by such Holder as a result of the conversion and any such Holder with respect to all such shares from, and to exclude such Reserved Shares from the calculation of aggregate beneficial ownership of Common Stock of such Holder for the purposes of, (x) the quotient obtained by dividing .12 by 360 provisions of the Rights Agreement (as defined in the Purchase Agreement) or from any similar agreement or plan that the Company may have and (y) the number of days for which such principal amount was outstanding.any applicable anti-takeover statute or regulation shall have been obtained and taken; and
(Cv) This Debenture shall be convertible into shares of Common Stock at the option of the Holderall filings with, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued approvals, consents and unpaid interest thereon subsequent actions by, any Person necessary to consummate the conversion at issue. The date on which a Conversion Notice is delivered is (including, without limitation, any approval required under the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder as amended) shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued been made and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorobtained.
Appears in 1 contract
Sources: Note Purchase Agreement (System Software Associates Inc)
Conversion. Subject to Sections 1.9, 1.10 and 1.11, at the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the Company, any stockholder of the Company or any other Person:
(i) each share of Company Capital Stock held in the Company’s treasury, owned by the Company or any direct or indirect wholly-owned Subsidiary of the Company or owned by Parent, Merger Sub or any subsidiary of Parent immediately prior to the Effective Time (each, a “Disregarded Share”), if any, shall be canceled without payment of any consideration with respect thereto;
(ii) each share of Series A Preferred Stock that is not a Disregarded Share issued and outstanding immediately prior to the Effective Time shall be converted automatically into the right to receive (in each case of the foregoing clauses (1) through (5), as such portions are set forth in the Merger Consideration Spreadsheet):
(1) an amount in cash equal to: (A) This Debenture shall be convertible into shares of Common Stock at the option applicable portion of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date Aggregate Upfront Cash Consideration; minus (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (iB) the quotient obtained by dividing (x) applicable portion of the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and Expense Fund Amount; plus
(2) the number of days for which such principal amount was outstanding, divided by a certificate or book entry reflecting (IIA) the Conversion Price on applicable portion of the Conversion DateUpfront Stock Consideration minus (B) the applicable portion of the Indemnity Holdback Shares; plus
(3) a contingent right to receive the applicable portion of the Milestone Payment in accordance with the terms of Section 1.7, provided, that if the Company shall have timely elected as and when such payments is required to pay the interest due on a Conversion Date in cash be made pursuant to the terms hereof; plus
(4) a contingent right to receive any cash disbursements required to be made from the Expense Fund with respect to such share of Series A Preferred Stock to the former holder thereof in accordance with the terms of this Agreement, subsection as and when such disbursements are required to be made pursuant to the terms hereof; plus
(ii5) a contingent right to receive a certificate or book entry reflecting the applicable portion of the Indemnity Holdback Shares that may be required to be issued with respect to such share to the former holder thereof in accordance with the terms of this Agreement, as and when such disbursements are required to be made pursuant to the terms hereof; and
(iii) each share of Series A-1 Preferred Stock that is not a Disregarded Share issued and outstanding immediately prior to the Effective Time shall not be used converted automatically into the right to receive (in each case of the foregoing clauses (1) through (5), as such portions are set forth in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:Merger Consideration Spreadsheet):
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to: (A) the applicable portion of the Aggregate Upfront Cash Consideration; minus (B) the applicable portion of the Expense Fund Amount; plus
(2) a certificate or book entry reflecting (A) the applicable portion of the Upfront Stock Consideration minus (B) the applicable portion of the Indemnity Holdback Shares; plus
(3) a contingent right to receive the applicable portion of the Milestone Payment in accordance with the terms of Section 1.7, as and when such payments is required to be made pursuant to the product terms hereof; plus
(4) a contingent right to receive any cash disbursements required to be made from the Expense Fund with respect to such share of Series A-1 Preferred Stock to the former holder thereof in accordance with the terms of this Agreement, as and when such disbursements are required to be made pursuant to the terms hereof; plus
(a5) a contingent right to receive a certificate or book entry reflecting the outstanding principal amount applicable portion of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not Indemnity Holdback Shares that may be required to physically surrender this Debenture be issued with respect to such share to the former holder thereof in accordance with the terms of this Agreement, as and when such disbursements are required to be made pursuant to the terms hereof;
(iv) each share of Company in order Common Stock that is issued and outstanding immediately prior to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, the Effective Time shall be irrevocable. Conversions hereunder cancelled and shall not have the effect right to receive any portion of lowering the Merger Consideration; and
(v) each share of common stock, par value $0.0001 per share, of Merger Sub issued and outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal immediately prior to the applicable conversion, which Effective Time shall be evidenced by notations made in the Conversion Notice. The Holder converted into and the Company shall maintain records showing the principal amount converted become one newly issued, fully paid, and the date non-assessable share of such conversions. In the event of any dispute or discrepancycommon stock, the records par value $0.0001 per share, of the Holder shall be controlling and determinative in the absence of manifest errorSurviving Company.
Appears in 1 contract
Conversion. At the Effective Time of the Merger:
(Ai) This Debenture shall be convertible into all shares of Common Stock at the option of the HolderCompany, no par value per share, and all shares of Preferred Stock of the Company, no par value per share (collectively, the “Company Capital Stock”), that are owned directly or indirectly by the Company or any subsidiary of the Company shall be cancelled, and no securities of Parent or other consideration shall be delivered in whole or in part at any time exchange therefor;
(ii) each of the issued and from time to timeoutstanding shares of Parent shall remain outstanding as one validly issued, after fully paid and nonassessable share of the Original Issue Date capital stock of Parent;
(subject to the limitations on conversion set forth in Section 4(a)(iiiii) hereof). The number of shares each share of Common Stock issuable upon a conversion hereunder shall be determined of the Company issued and outstanding immediately prior to the Effective Time (the “Company Common Stock”) (other than shares, if any, held by adding persons who have demanded and perfected dissenters’ rights for such shares in accordance with the sum Corporations Code of the State of California and who, as of the Effective Time, have not effectively withdrawn or lost such dissenters’ rights, referred to hereinafter as “Dissenting Shares”, and those shares being cancelled pursuant to clause (i) the quotient obtained by dividing (xabove) the outstanding principal amount of this Debenture to shall be converted and (y) automatically into the Conversion Price (as defined herein)right to receive, and (ii) the receive amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted Aggregate Cash Amount and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstandingCommon Cash Percentage, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Company Common Stock issuable upon that are issued and outstanding on a conversion hereunder.
(B) Notwithstanding anything fully exercised, fully converted basis immediately prior to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common StockEffective Time;
(2iv) each share of Series A Preferred Stock of the Underlying Shares issuable for such conversion Company issued and outstanding immediately prior to the Effective Time (including any interest payable in sharesthe “Series A Preferred Stock”) (x) are not registered for resale other than Dissenting Shares and shares being cancelled pursuant to an effective Underlying Shares Registration Statement and clause (yi) may not be sold without volume restrictions pursuant to Rule 144(kabove) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to shall be converted on such Conversion Date and (b) automatically into the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time right to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company receive a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an cash amount equal to the applicable conversion, which Series A Cash Amount and a fraction of a share of Parent Common Stock equal to the Series A Exchange Ratio;
(v) each share of Series B Preferred Stock of the Company issued and outstanding immediately prior to the Effective Time (the “Series B Preferred Stock”) (other than Dissenting Shares and shares being cancelled pursuant to clause (i) above) shall be evidenced by notations made in converted automatically into the Conversion Notice. The Holder right to receive a cash amount equal to the Series B Cash Amount and a fraction of a share of Parent Common Stock equal to the Series B Exchange Ratio;
(vi) each share of Series C Preferred Stock of the Company issued and outstanding immediately prior to the Effective Time (the “Series C Preferred Stock”) (other than Dissenting Shares and shares being cancelled pursuant to clause (i) above) shall maintain records showing be converted automatically into the principal right to receive a cash amount converted equal to the Series C Cash Amount and a fraction of a share of Parent Common Stock equal to the date Series C Exchange Ratio;
(vii) each share of such conversions. In the event of any dispute or discrepancy, the records Series D Preferred Stock of the Holder Company issued and outstanding immediately prior to the Effective Time (the “Series D Preferred Stock”) (other than Dissenting Shares and shares being cancelled pursuant to clause (i) above) shall be controlling converted automatically into the right to receive a cash amount equal to the Series D Cash Amount and determinative in a fraction of a share of Parent Common Stock equal to the absence Series D Exchange Ratio;
(viii) each share of manifest errorSeries E Preferred Stock of the Company issued and outstanding immediately prior to the Effective Time (the “Series E Preferred Stock”) (other than Dissenting Shares and shares being cancelled pursuant to clause (i) above) shall be converted automatically into the right to receive a cash amount equal to the Series E Cash Amount and a fraction of a share of Parent Common Stock equal to the Series E Exchange Ratio;
(ix) each share of Series F Preferred Stock of the Company issued and outstanding immediately prior to the Effective Time (the “Series F Preferred Stock”) (other than Dissenting Shares and shares being cancelled pursuant to clause (i) above) shall be converted automatically into the right to receive a cash amount equal to the Series F Cash Amount and a fraction of a share of Parent Common Stock equal to the Series F Exchange Ratio; and
(x) each share of Series G Preferred Stock of the Company issued and outstanding immediately prior to the Effective Time (the “Series G Preferred Stock”) (other than Dissenting Shares and shares being cancelled pursuant to clause (i) above) shall be converted automatically into the right to receive a cash amount equal to the Series G Cash Amount and a fraction of a share of Parent Common Stock equal to the Series G Exchange Ratio; provided, that a portion of the shares of Parent Common Stock issuable pursuant to the foregoing clauses (iii) through (x) shall be deposited into escrow and shall be subject to the provisions of the Reorganization Agreement relating to the disposition of the Escrow Fund.
Appears in 1 contract
Conversion. (Aa) Conversion at Option of Holder.
(i) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (as det 12 fined in Section 5) (subject to the limitations on conversion set forth in Section 4(a)(ii3(b) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) equals the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and by (y) the Conversion Price (as defined hereinin Section 3(c)(i), and ). The Obligor shall deliver Common Stock certificates to the Holder prior to the Fifth (ii5th) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Trading Day after a Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(Bii) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
: (1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay principal and interest hereunder in shares of Common Stock;
; (2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
; (43) the Company Obligor has failed to timely satisfy its conversion obligations hereunderconversion; or
or (54) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(iiSection 3(b), then, at the Company may not pay interest option of the Holder, the Obligor, in kind and must pay interest in cash by deliveringlieu of delivering shares of Common Stock pursuant to Section 3(a)(i), shall deliver, within three (3) Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on plus any interest due therein divided by the Conversion Price, chosen by the Holder, and multiplied by the highest closing price of the stock from date of the conversion notice till the date that such cash payment is made. Further, if the Obligor shall not have delivered any cash due in respect of conversion of this Debenture or as payment of interest thereon by the fifth (5th) Trading Day after the Conversion Date and (b) Date, the product of (x) Holder may, by notice to the quotient obtained by dividing .12 by 360 and (y) Obligor, require the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into Obligor to issue shares of Common Stock at pursuant to Section 3(c), except that for such purpose the option Conversion Price applicable thereto shall be the lesser of the Holder, in whole or in part at any time Conversion Price on the Conversion Date and from time to time, after the Original Issue Date (Conversion Price on the date of such Holder demand. Any such shares will be subject to the limitations on conversion set forth in Section 4(a)(iiprovisions of this Section.
(iii) hereof). The Holder shall effect conversions by delivering to the Company Obligor a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company Obligor in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company Obligor shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Sources: Secured Convertible Debenture (Eyi Industries Inc.)
Conversion. (i) Conversion at Option of Holder.
(A) This Debenture shall ------------------------------ be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii4(a)(iii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to the quotient obtained by dividing (I) the product of (x) the outstanding principal amount of this Debenture to be converted and by (y) the product of (1) the quotient obtained by dividing .12 .05 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion DateDate (For example, assuming two million dollars ($2,000,000) of Debentures are outstanding for seven hundred twenty (720) days and the conversion price is ten dollars ($10.00) per share that would result in 220,000 shares of Common Stock (2,000,000/10) + ([(2,000,000) (.05/360) (720)]/10)), provided, that if the Company shall have timely elected to pay the interest due -------- on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) after the Underlying Shares Interest Effectiveness Date (as defined in Section 5) the number of shares of Common Stock issuable for such conversion (including any interest payable in sharespursuant to Section 4(a)(i)(A) above (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 65), as determined by counsel to the Company pursuant to a written opinion letter, addressed to the Company's transfer agent in the form and substance acceptable to the applicable Holder and such transfer agent (if the shares of Common Stock are permitted by the Holder to be delivered under this clause (2) prior to the Effectiveness Date (as defined in the Registration Rights Agreement) and thereafter an Underlying Shares Registration Statement shall be declared effective by the Commission, the Company shall, within three (3) Trading Days after the date of such declaration of effectiveness, exchange such shares for shares of Common Stock that are free of restrictive legends of any kind);
(3) the Common Stock is not listed or quoted for trading on the OTC Bulletin Board or on a Subsequent Market;; or
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) then, at the issuance option of such the Holder, the Company, in lieu of delivering shares of Common Stock would result in a violation of Sections 4(a)(iipursuant to Section 4(a)(i)(A)(ii), then, the Company may not pay interest in kind and must pay interest in cash by deliveringshall deliver, within three (3) Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 .05 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering surrendering the Debentures (or such portions thereof) to the Company a completed notice substantially in be converted, together with the form of conversion notice attached hereto as Exhibit A (a "Conversion Notice")) to the --------- ----------------- Company. The Each Conversion Notice shall set forth specify the remaining principal amount of this Debenture Debentures to be converted, the applicable Conversion Price as of the Conversion Date and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a such conversion is to be effected, which date may not be prior to the date such Conversion Notice is deemed to have been delivered is the hereunder (a "Conversion Date." Unless "). If no Conversion Date is specified in a Conversion Notice, --------------- the Holder Conversion Date shall be the date that such Conversion Notice is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversionsdeemed delivered hereunder. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have If the effect Holder is converting less than all of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to represented by the applicable conversion, which shall be evidenced Debenture(s) tendered by notations made in the Holder with the Conversion Notice. The Holder and , or if a conversion hereunder cannot be effected in full for any reason, the Company shall maintain records showing honor such conversion to the extent permissible hereunder and shall promptly deliver to such Holder (in the manner and within the time set forth in Section 4(b)) a new Debenture for such principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest erroras has not been converted.
Appears in 1 contract
Sources: Securities Purchase Agreement (One Voice Technologies Inc)
Conversion. (Ai) This Debenture shall be convertible into shares In lieu of Common Stock at the option treating or continuing to treat all or any portion of the Holderamounts advanced by a Deficit Lending Member to or on behalf of an Obligor as all or a portion of a Deficit Loan, in whole or in part a Deficit Lending Member that made a Deficit Loan may elect (the “Electing Member”), by giving written notice (each, a “Conversion Notice”) to the Obligor under the applicable Deficit Loan and the Management Committee at any time prior to such Deficit Loan being repaid in full, to effectuate a Conversion of all or any portion of the Electing Member’s Deficit Loan (including accrued and from time to time, after the Original Issue Date unpaid interest thereon) in exchange for a portion (as provided in Section 4.2(c)(ii) below) of an Obligor’s Percentage Interest (subject only to the limitations on conversion such pledges and/or security interests that have priority, as set forth in Section 4(a)(ii4.2(b)(iii), over the Deficit Loan which is the subject of the Conversion Notice) hereof). The number and, as a result of shares such Conversion, to cause the Percentage Interest of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture such Obligor to be converted permanently decreased and (y) the Conversion Price (as defined herein), and (ii) Percentage Interest of the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture Electing Member to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used permanently increased in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion manner set forth in Section 4(a)(ii) hereof4.2(c)(ii). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Each Conversion Notice shall set forth the remaining principal amount of the Deficit Loan made by such Electing Member that is to be the subject of a Conversion pursuant to this Debenture and all Section 4.2(c).
(ii) Notwithstanding anything in this Agreement to the contrary, effective on the applicable Conversion Date, the Percentage Interest of: (A) the Obligor that is the subject of the applicable Conversion Notice shall be permanently reduced (but not below zero) by an amount (expressed as a percentage) equal to: (i) the Dilution Multiple; multiplied by the amount of the Deficit Loan (including accrued and unpaid interest thereon subsequent thereon); divided by (ii) the aggregate Capital Contributions of the Members (determined after taking into account the amount of the Deficit Loan to be converted); and (B) the Electing Member which sent the applicable Conversion Notice shall be permanently increased by the number of percentage points (and/or fractions thereof) by which the Percentage Interest of the Obligor had been reduced pursuant to clause (A) of this sentence. The foregoing adjustments shall be effective as of the date of the default.
(iii) If any Percentage Interest is adjusted as provided in this Section 4.2(c), such adjustment shall apply from and after the applicable Conversion Date, including, without limitation, with respect to distributions and payments to be made pursuant to this Agreement (including, without limitation, pursuant to Section 6.1, Article X, and Article XI) and voting rights granted in this Agreement to the conversion at issueMembers. The date on which a provisions of this Section 4.2(c) shall apply from time to time with respect to any outstanding Deficit Loans, and the Percentage Interest of either Member in the Company, as the same may have been increased or reduced by reason of an earlier Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under pursuant to this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b4.2(c), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect -21- Operating Agreement of lowering the outstanding principal amount US Americas Refining JV, LLC further increased or reduced by application of this Debenture plus Section 4.2(c) in connection with any subsequent Conversions. Each Member hereby agrees to execute all accrued documents, agreements and unpaid interest thereon in instruments as the Deficit Lending Member that holds any Deficit Loan may reasonably request to give effect to this entire Section 4.2, and hereby grants an amount equal irrevocable power of attorney to the applicable conversionElecting Member to execute and deliver all such instruments, documents and agreements (including, without limitation, financing statements and continuation statements with respect to Deficit Loans), which shall be evidenced by notations made power of attorney is coupled with an interest and is irrevocable; provided, however, that (notwithstanding anything to the contrary contained in this Agreement) either Member (without the Conversion Notice. The Holder consent or any further action of the other Member) may execute and deliver all such instruments, documents and agreements on behalf of the other Member pursuant to such power of attorney if and to the extent the other Member or its Affiliate is an Obligor and the Company shall maintain records showing the principal amount converted and the date of reason for such conversions. In the event of instrument, document or agreement arises out of, relates to or is otherwise in connection with any dispute Deficit Loan to such Obligor Member or discrepancyits Affiliate.
(iv) EACH MEMBER ACKNOWLEDGES AND AGREES THAT EACH SUCH MEMBER’S MEMBERSHIP INTEREST IN THE COMPANY MAY BE SUBSTANTIALLY DILUTED AND/OR FORFEITED IF SUCH MEMBER FAILS TO MAKE REQUIRED CONTRIBUTIONS UNDER THIS AGREEMENT.EACH MEMBER FURTHER ACKNOWLEDGES AND AGREES THAT THE REMEDIES AVAILABLE TO A NON-DEFAULTING MEMBER PURSUANT TO THIS ENTIRE Article IV, the records of the Holder shall be controlling and determinative in the absence of manifest errorARTICLE VII AND ARTICLE XI ARE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO ANY MEMBER FOR A DEFAULT BY ANY OTHER MEMBER IN ITS OBLIGATIONS TO MAKE CAPITAL CONTRIBUTIONS UNDER THIS AGREEMENT.
Appears in 1 contract
Conversion. (Aa) This Debenture shall be convertible The holder of this Security is entitled at any time on or after March 21, 2002 and before the close of business on March 21, 2006 (or, in case the holder hereof has exercised his right to require the Company to repurchase this Security or a portion hereof pursuant to Section 3 hereof, then in respect of this Security or such portion hereof, as the case may be, until and including, but (unless the Company defaults in making the payment due upon repurchase) not after, the close of business on the Repurchase Date) to convert this Security (or any portion of the principal amount hereof that is an integral multiple of $1,000), into fully paid and nonassessable shares (calculated as to each conversion to the nearest 1/100 of a share) of Common Stock of the Company at the rate of 172.8311 shares of Common Stock for each $1,000 principal amount of Security (or at the option then current adjusted rate if an adjustment has been made as provided below) (the "Conversion Rate") by surrender of this Security, duly endorsed or assigned to the Company or in blank to the Company at the Designated Office, accompanied by written notice to the Company that the holder hereof elects to convert this Security (or if less than the entire principal amount hereof is to be converted, specifying the portion hereof to be converted). Notwithstanding the foregoing, unless the holder of this Security notifies the Company to the contrary, such holder shall be deemed for all purposes to have converted this Security, subject only to surrender of this Security against delivery of the Holder, in whole Shares and cash issuable upon such conversion (which surrender may take place before or in part at any time and from time to time, after the Original Issue Date (date of such deemed conversion, without affecting the availability thereof), immediately prior to the close of business on March 21, 2006, if the Closing Price of the Common Stock on the immediately preceding Trading Day exceeds 115% of the Conversion Price. Upon surrender of this Security for conversion, the holder will be entitled to receive the interest accruing on the principal amount of this Security then being converted and unpaid to such date of conversion. Subject to Section 2(b) below, no payment or adjustment is to be made on conversion for dividends on the Common Stock issued on conversion hereof. No fractions of shares or scrip representing fractions of shares will be issued on conversion, but instead of any fractional interest, the Company shall pay a cash adjustment, computed on the basis of the Closing Price of the Common Stock on the date of conversion, or, at its option, the Company shall round up to the next higher whole share. Notwithstanding any other provision of this Security, the Company shall, if the holder so elects, deliver the shares of Common Stock issuable upon conversion of this Security to any third party designated in writing by the holder. Notwithstanding the foregoing, no holder of this Security that is subject to the limitations on conversion set forth restrictions of Section 4 of the Bank Holding Company Act of 1956, as amended (the "BHCA") (a "BHCA Person") shall have the right to convert this Security if, after giving effect to such conversion, the BHCA Person and its affiliates and transferees would own or be deemed to own shares of Common Stock in Section 4(a)(ii) hereof). The excess of either the maximum number of shares of Common Stock issuable upon which the BHCA Person is permitted to own under the BHCA and the regulations of the Board of Governors of the Federal Reserve System thereunder or such lower number as the relevant BHCA Person may have requested in writing to the Company. Any Security held by an assignee or transferee of a holder subject to the restriction on conversion hereunder in this paragraph shall continue to be determined by adding subject to the sum of same restriction on conversion unless such Security was assigned or transferred (i) to the quotient obtained by dividing (x) public in an offering registered under the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein)Securities Act, and (ii) in a transaction pursuant to Rule 144 or 144A under the amount equal to (I) the product Securities Act in which no person acquires Securities convertible into more than 2% of (x) the outstanding principal amount Common Stock, (iii) in a single transaction to a third party who acquires a majority of the Common Stock without regard to the conversion of any Security so transferred, or(iv) in any other manner permitted under the BHCA. The Company may rely on the representation of the relevant BHCA Person that a transfer has been made in a manner which permits conversion of such Security. The holder of this Debenture Security, by acceptance thereof, shall be deemed to have agreed to the foregoing restriction on transfers.
(b) The Conversion Rate shall be converted and (y) the product of subject to adjustments from time to time as follows:
(1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if In case the Company shall have timely elected to pay or make a dividend or other distribution on any class of capital stock of the interest due Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the Determination Date for such dividend or other distribution shall be increased by dividing such Conversion Rate by a Conversion Date in cash pursuant to fraction of which the terms hereof, subsection (ii) numerator shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything outstanding at the close of business on such Determination Date and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective immediately after the contrary contained herein, if opening of business on any Conversion the day following such Determination Date:
. For the purposes of this paragraph (1) ), the number of shares of Common Stock at any time outstanding shall not include shares held in the time authorizedtreasury of the Company or issuable upon the exercise or conversion of outstanding options, unissued and unreserved for all purposes, warrants or held as treasury stock, is insufficient to pay interest hereunder other securities but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock;. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the Underlying Shares issuable for such conversion last sentence of paragraph (including any interest payable 7) of this Section 2(b), in shares) (x) are not registered for resale pursuant case the Company shall issue rights, options or warrants to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the all holders of its Common Stock is not listed entitling them to subscribe for or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into purchase shares of Common Stock at a price per share less than the option current market price per share (determined as provided in paragraph (8) of this Section 2(b)) of the HolderCommon Stock on the Determination Date for such distribution, the Conversion Rate in whole effect at the opening of business on the day following such Determination Date shall be increased by dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such Determination Date plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or in part purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on such Determination Date plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following such Determination Date. For the purposes of this paragraph (2), the number of shares of Common Stock at any time and from time to timeoutstanding shall not include shares held in the treasury of the Company or issuable upon the exercise or conversion of outstanding options, after the Original Issue Date (subject to the limitations on conversion set forth warrants or other securities but shall include shares issuable in Section 4(a)(ii) hereof)respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Holder shall effect conversions by delivering to the Company a completed notice substantially will not issue any rights, options or warrants in respect of shares of Common Stock held in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records treasury of the Holder shall be controlling and determinative in the absence of manifest errorCompany.
Appears in 1 contract
Sources: Convertible Note Agreement (Sciclone Pharmaceuticals Inc)
Conversion. (Aa) This Debenture shall Subject to Sections 6(c) - (e) below, principal and accrued interest on this Note may be convertible into shares of Common Stock converted in whole at the option election of the HolderCompany upon the Maturity Date, in whole or in part at any time and from time to timeinto the Company's Common Shares, after the Original Issue Date USD $0.0005 par value per share (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof"Common Shares"). The number of shares of Common Stock issuable upon a conversion hereunder into which this Note may be converted shall be determined by adding [*].
(b) If the sum Company elects to convert this Note into Common Shares, it must so notify the Holder in writing at least [*] prior to the Maturity Date, and all principal and all accrued interest must be so converted. The Company may not convert partial amounts of principal or interest. Subject to Section 6(c) below, if the Company does not elect to convert this Note into Common Shares, all outstanding principal and all accrued interest thereon must be paid to the Holder in cash on the Maturity Date as set forth in Section 3, unless otherwise agreed in writing by the Holder.
(c) In no event shall the Company be entitled to convert this Note and the accrued interest into a total number of Common Shares that, together with the Second Closing Shares (if they are to be issued at the time of such conversion), exceeds 9.9% of the total is- sued and outstanding Common Shares as of the date of such conversion; if conversion of this Note would exceed this 9.9% threshold, that portion of the principal and accrued interest that, including the Second Closing Shares (if to be then issued), would convert into 9.9% of the total issued and outstanding shares of Common Shares as of the date of such conversion shall be so converted, and the remainder of the principal and accrued interest shall be repaid in cash.
(d) The Company shall not be entitled to convert any portion of this Note or the accrued interest unless there is on the conversion date (i) an effective registration statement under the quotient obtained by dividing (x) Act covering resale of all of the outstanding Common Shares into which the principal amount of this Debenture to be converted Note and all accrued interest thereon would convert, (yii) the Conversion Price (as defined herein)such Shares are listed on a Principal Trading Market, and (iiiii) the amount equal Company has received all requisite consents and permissions for the Conversion Shares from all applicable governmental entities, including, without limitation, the Bermuda Monetary Authority, which consent already has been obtained subject to (Ithe requirement that the Common Shares are listed on an appointed stock exchange as defined in Section 2(1) of the product Companies Act 1981 of (x) Bermuda. If such is not the case at any time prior to the Maturity Date, then this Note shall remain outstanding until the Maturity Date and, if no such effective registration statement is then in place, the Company will be required to repay all outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price accrued interest in cash on the Conversion Maturity Date. In addition, provided, that if the Company shall have timely elected not be entitled to pay convert the principal of this Note or the accrued interest due on during a Conversion Date in cash pricing period used to determine the Second Purchase Price pursuant to the Investment Agreement.
(e) After this Note is converted pursuant to the terms hereofof this Section 6 or repaid pursuant to Section 3, subsection the Holder shall surrender this Note at the office of the Company. If this Note is converted, the Company shall, within three (ii3) shall not Trading Days, cause to be used issued and delivered to the Holder of this Note a certificate or certificates in the calculation name of the Holder (unless otherwise designated by the Holder) for the number of shares to which the Holder of Common Stock issuable this Note shall be entitled. If this Note matures on the Second Closing Date in accordance with Section 1(a) and is converted in accordance with Section 6, such conversion shall be deemed to have been made on the Second Closing Date, immediately prior to the Second Closing. The person or persons entitled to receive the shares issued upon a any conversion hereundershall be treated for all purposes as the record holder or holders of such shares as of such date. No fractional shares shall be issued upon conversion of this Note. In lieu thereof, the Company shall pay to the Holder the amount of outstanding principal and interest that is not so converted.
(Bf) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and If the Company shall maintain records showing by reclassification of securities or otherwise change any of the principal amount converted Common Shares into the same or a different number of securities of any other class or classes, this Note shall thereafter represent the right to acquire such number and kind of securities as would have been issuable as the date result of such conversions. In change with respect to the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorCommon Shares immediately prior to such reclassification.
Appears in 1 contract
Sources: Convertible Subordinated Promissory Note (Xoma LTD /De/)
Conversion. At any time on or prior to the Maturity Date, (Ai) This Debenture without Shareholder Approval, the Agent shall be convertible have the right to convert (any such conversion, a “Conversion”) any portion of the principal and accrued interest of the Term Loans into shares of common stock, no par value of Parent (“Parent Common Stock at the option of the HolderStock”) that represent, in whole or the aggregate in part at any time and from time the event of more than one conversion election pursuant to timethis clause (i), after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The a number of shares not exceeding 19.90% of the outstanding shares of Parent Common Stock issuable upon a conversion hereunder shall be determined by adding as of the sum of (i) date hereofClosing Date and equaling the quotient obtained by dividing (x) the outstanding principal total amount of this Debenture to be converted principal and (y) accrued interest of the Term Loans being Converted divided by the Conversion Price upon Agent’s delivery of notice of its intent to effectuate such Conversion (as defined herein)any such notice, a “Conversion Notice”) and (ii) with Shareholder Approval, the Agent shall have the right to Convert any portion of the principal and accrued interest of the Term Loans into shares of Parent Common Stock in any amount equal to (I) and equaling the product of (x) the outstanding principal total amount of this Debenture to be converted principal and (y) accrued interest of the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, Term Loans being Converted divided by (II) the Conversion Price on upon Agent’s delivery of a Conversion Notice. Notwithstanding anything herein to the contrary, if any ABL Obligations are outstanding at the time of such Conversion, the amount of Parent Common Stock held by the Agent shall not exceed the Conversion DateCap. Any Conversion shall be treated as a prepayment of Term Loans hereunder and the outstanding balance of the Term Loans shall be reduced by the amount so repaid upon such Conversion. Upon receipt of Agent’s Conversion Notice, provided, that if the Company Borrowers shall have timely elected cause the Conversion as promptly as possible and shall use commercially reasonable efforts to pay promptly (and in any event within sixty (60) days of the interest due on applicable Conversion Notice) obtain any Shareholder Approval required to effectuate a Conversion Date in cash pursuant to the terms hereof, subsection clause (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderhereof.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Bed Bath & Beyond, Inc.)
Conversion. (Aa) This Debenture At the option of the Holder, this Note shall be convertible into shares of Common Stock at of the option Maker on the terms and conditions set forth in this Section 2. Notwithstanding the foregoing, if the conversion of this Note pursuant to this Section 2 would otherwise result in the Holder, in whole together with its Affiliates, owning more than 9.99% of the outstanding Common Stock calculated on an as-converted, fully-diluted basis (including as outstanding shares of capital stock issuable upon exercise or in part at any time and from time to timeconversion of all outstanding Options, after Purchase Rights or other Convertible Securities of the Original Issue Date Maker), immediately following the conversion of the Note (subject to the limitations on conversion set forth in Section 4(a)(ii“9.99% Threshold”), the Outstanding Amount shall be converted into (i) hereof). The that number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding that would result in the sum of Maker reaching, but not exceeding, the 9.99% Threshold (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein“9.99% Shares”), and (ii) the an amount in cash equal to the difference between (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (yA) the product of (1) the quotient obtained number of 9.99% Shares issued upon conversion, multiplied by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by Conversion Price and (IIB) the Outstanding Amount.
(b) Subject to Sections 2(a), 2(c) and 2(d) hereof, at any time between the Issuance Date and 11:59 p.m. New York City time on the Business Day immediately preceding the Maturity Date (the “Conversion Price Deadline”), the Holder shall be entitled to convert all, but not less than all, of the then Outstanding Amount into shares of Common Stock based on the Conversion DateRate described in Section 2(c) below. All shares of Common Stock issued upon conversion of this Note (i) shall be duly issued, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection fully paid and non-assessable and (ii) shall not be used in subject to any Liens, preemptive rights or other transfer restrictions. The Maker shall pay any and all transfer, stamp and similar taxes that may be payable with respect to the calculation of the number issuance and delivery of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to of this Note; provided, that the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may Maker shall not be sold without volume restrictions pursuant to Rule 144(k) promulgated under responsible for the Securities Act (payment of any income taxes that may be incurred by the Holder as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance result of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingconversion.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Sources: Convertible Promissory Note (Regulus Therapeutics Inc.)
Conversion. After the closing of the Company’s first equity financing after the Warrant Issue Date with aggregate gross offering proceeds of no less than twenty million dollars (A$20,000,000) This Debenture shall be convertible into shares (excluding amounts received on conversion of Common Stock any promissory notes to the Company or exercise of any warrants and excluding cash investments by existing Company investors) (the “Next Qualified Financing”), and on or prior to the Warrant Expiration Date, the then outstanding Value of this Warrant shall, at the option of the HolderMajority Holders’ option, be exercisable in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The for that number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum type of equity securities sold in the Next Qualified Financing (ithe “Series D Preferred” and, together with the Series C Preferred, the “Preferred Stock” or the “Warrant Shares”) equal to the quotient obtained by dividing (xi) the then outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and Value by (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for price per security at which such principal amount was outstandingequity securities are sold in such Next Qualified Financing (together with the Series C Exercise Price, divided by (II) as applicable, the Conversion Price on “Exercise Price”). Notwithstanding the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms foregoing or any other term hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
within five (5) business days after the issuance Holder’s receipt of such shares written notice from the Company that the closing of Common Stock would result the Next Qualified Financing has occurred, the Holder shall notify the Company in a violation of Sections 4(a)(iiwriting whether this Warrant shall thereafter be exercisable solely into Series C Preferred or solely into Series D Preferred (on the respective terms contained herein), then. At its option, the Company may not pay interest in kind and must pay interest in cash elect to restate this Warrant to account for such election by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time specifying the applicable number of Warrant Shares and from time to timeExercise Price, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof)adjustment hereunder. The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount cooperate with any such restatement of this Debenture Warrant, including without limitation, surrendering this Warrant for cancellation and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Daterestatement." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (Nanosphere Inc)
Conversion. (Aa) This Debenture The Holder at its option may convert this Note at any time on or after September 30, 2009 into the number of shares of Common Stock equal to the quotient of (i) the principal amount of this Note (including accrued but unpaid interest) divided by (ii) $ (as adjusted in accordance with the terms hereof, the “Conversion Price”). For the avoidance of doubt, at the time of issuance, the Notes (in the aggregate) shall be convertible into at least % of the outstanding shares of 4 Include only in Senior Convertible Notes. 5 Include only in Senior Convertible Notes. Common Stock calculated on a fully diluted basis (without giving effect to any dilutive effect of a stock option or similar plan).
(b) Unless the conversion of this Note would violate Section 4.10 of the indentures governing the Parent Notes, this Note will convert automatically into shares of Common Stock at the option Conversion Price upon the consummation of a Qualified Transaction.
(c) If on any date prior to a Qualified Transaction the conversion of the HolderNote would result in (i) a “Change of Control Offer” as defined in the indenture governing the 2014 Notes (so long as any Parent Notes are then outstanding) or (ii) an “Extraordinary Transaction” as defined in the Quill Merger Agreement, the Notes shall be convertible on such date into (1) one share less than the number of fully paid and non-assessable shares of Common Stock that would result in whole such Change of Control or in part at any time and from time to time, after the Original Issue Date Extraordinary Transaction plus (subject to the limitations on conversion set forth in Section 4(a)(ii2) hereof). The an additional number of shares of non-voting Common Stock (in all respects other than voting, identical to the Common Stock) that would have been issuable upon a conversion hereunder in voting Common Stock but for this limitation (the “Conversion Limitation”).
(d) The Conversion Limitation shall be determined applied only (i) to the Holder that would cause the Change of Control or (ii) if a “group” (as such term is used in Section 13(d)(3) of the Exchange Act), on a pro rata basis among the Holders in such group, such that each Holder shall be entitled to that portion of the maximum number of shares of voting Common Stock that may be issued pursuant to the preceding paragraph.
(e) Notwithstanding anything in this Section 7 to the contrary:
(i) The Borrower shall, by adding written notice to the sum Holder within 2 Business Days after this Note is presented for conversion, refuse to convert this Note into shares of Common Stock if (A) any Parent Notes are then outstanding and (B) such conversion would, after giving effect to the use of proceeds associated with the closing of any concurrent Qualified Transaction (e.g., using the proceeds of an initial public offering to retire Parent Notes), violate Section 4.10 (Asset Sales) of the indentures governing the Parent Notes. If at any time after the earliest to occur of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein)a Qualified Transaction, and (ii) the amount equal to consummation of any other public offering of any Capital Stock of the Borrower, (Iiii) the product Borrower’s entering into an agreement to effect a Designated Event and (iv) the consummation of a Designated Event, a Holder is not permitted to convert this Note into Common Stock, such Holder may sell all or any portion of this Note and the Borrower shall pay to such Holder in cash, within 5 Business Days, the excess of (x) the outstanding principal amount Fair Market Value (determined in the same manner as contemplated by Section 10(d) hereof) of the Common Stock issuable upon conversion of the transferred portion of the Note but for this Debenture to be converted and limitation (the “Note FMV”) over (y) the product net cash proceeds (or Fair Market Value of any non-cash proceeds (1determined in the same manner as contemplated by Section 10(d) the quotient obtained hereof)) received by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, Holder pursuant to such sale; provided, that if the Company Holder shall have timely elected first offer to pay the interest due on a Conversion Date in cash pursuant sell such portion of this Note to the terms hereofBorrower at the Note FMV, subsection and the Borrower may purchase such portion at such price, in cash, within 5 Business Days of receipt of such offer from the Holder.
(ii) shall not At any time when this Note may be used converted, the Holder may elect to convert (or in the calculation case of the number automatic conversion, may elect to have converted) all or any portion of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible this Note into shares of non-voting Common Stock at Stock, which will be automatically convertible into Common Stock, upon the option occurrence of the Holdersuch conditions as such Holder may specify, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof7(d). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Sources: Note Purchase Agreement (Angiotech Pharmaceuticals Inc)
Conversion. (A) This Debenture 7.1 The Loan shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price fully paid Ordinary Shares on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the following terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Dateand conditions:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the Lender shall have the right to convert its holding of the outstanding principal amount of the Debentures Loan (the “Loan Outstanding”) or any part thereof in amounts or multiples of £5,000 into such number of fully paid Ordinary Shares as, at the Conversion Price, have an aggregate value equal to (as nearly as practicable, ignoring fractions and rounding down to the nearest whole number of Ordinary Shares) the aggregate nominal value of the Loan Outstanding to be converted by completing the Notice of Conversion, at, or sending it by registered post to, the registered office of the Company. A duly completed conversion notice may not be withdrawn without the consent of the Company. Conversion pursuant to this sub-paragraph may be made at any time during the Conversion Period by written notice to the Company in accordance with this condition. The effective date for conversion shall be the date upon the Notice of Conversion shall be received by the Company (“Conversion Date”); and
(b) if a resolution shall be passed for the voluntary winding up of the Company during the Conversion Period, the Lender will be entitled, in respect of the Loan or any part thereof, on giving written notice to the Company within three months after the passing of such resolution, to elect to be treated as if it had exercised its conversion rights immediately before the commencement of such liquidation and, in that event, the Lender shall in lieu of the payments which would otherwise be due in respect of such Loan, be entitled to receive out of the assets available in the liquidation, pari passu with the holders of the Ordinary Shares, such a sum as it would have received had it been the holder of Ordinary Shares to which it would have been entitled by virtue of such a conversion and had ceased to hold such Loan on the last Interest
1. Subject to this paragraph, all conversion rights lapse in the event of liquidation.
7.2 The Ordinary Shares arising on conversion shall be allotted and issued not later than 14 days after the Conversion Date with effect from the Conversion Date and will rank pari passu in all respects with the Ordinary Shares in issue on such Conversion Date and (b) save that they shall not rank for dividends or other distributions declared made or paid on the product Ordinary Shares in respect of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject accounting period ended prior to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless
7.3 Within 28 days after the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and relevant allotment date the Company shall maintain records showing issue free of charge to the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records Lender in respect of the Holder Loan which has been converted a share certificate in respect of the Ordinary Shares arising on conversion and, subject to Condition 7.4 shall also issue a fresh certificate for the balance of the Loan held by the Lender where less than the whole of the Loan is converted.
7.4 Fractions of Ordinary Shares will not be allotted on Conversion, any residual amounts of the Loan left outstanding after conversion as a result of the elimination of fractions shall be controlling waived and determinative in may be retained by the absence of manifest errorCompany.
Appears in 1 contract
Sources: Convertible Loan Agreement
Conversion. (Aa) This Debenture shall be convertible The holder of this Security is entitled at any time on or after November 15, 2001 and before the close of business on November 15, 2005 (or, in case this Security is called for redemption or the holder hereof has exercised his right to require the Company to repurchase this Security or a portion hereof pursuant to Section 3 hereof, then in respect of this Security or such portion hereof, as the case may be, until and including, but (unless the Company defaults in making the payment due upon redemption or repurchase) not after, 5:00 p.m., San Diego, California time, on the redemption date or the Repurchase Date, as the case may be), to convert this Security (or any portion of the principal amount hereof that is an integral multiple of $1,000), into fully paid and nonassessable shares (calculated as to each conversion to the nearest 1/100 of a share) of Common Stock of the Company at the rate of 45.1021 shares of Common Stock for each $1,000 principal amount of Security (or at the option of then current adjusted rate if an adjustment has been made as provided below) (the Holder"Conversion Rate" which term, in whole or in part at any time and from time where the context so permits, shall be deemed to time, after mean the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder pursuant to such Conversion Rate) by surrender of this Security, duly endorsed or assigned to the Company or in blank to the Company at the Designated Office, accompanied by written notice to the Company that the holder hereof elects to convert this Security (or if less than the entire principal amount hereof is to be converted, specifying the portion hereof to be converted). Notwithstanding the foregoing, unless the holder of this Security notifies the Company to the contrary, such holder shall be determined deemed for all purposes to have converted this Security, subject only to surrender of this Security against delivery of the Shares and cash issuable upon such conversion (which surrender may take place before or after the date of such deemed conversion, without affecting the validity thereof), (i) immediately prior to the close of business on the redemption date, if this Security is redeemed pursuant to Section 1(a) hereof, or (ii) immediately prior to the close of business on November 15, 2005, if the Closing Price of the Common Stock on the immediately preceding Trading Day exceeds 115% of the Conversion Price. Subject to Section 2(b) below, no payment or adjustment is to be made on conversion for dividends on the Common Stock issued on conversion hereof. No fractions of shares or scrip representing fractions of shares will be issued on conversion, but instead of any fractional interest, the Company shall pay a cash adjustment, computed on the basis of the Closing Price of the Common Stock on the date of conversion, or, at its option, the Company shall round up to the next higher whole share. Notwithstanding any other provision of this Security, the Company shall, if the holder so elects, deliver the shares of Common Stock issuable upon conversion of this Security to any third party designated by adding the holder. Notwithstanding the foregoing, no holder of this Security that is subject to the restrictions of Section 4 of the Bank Holding Company Act of 1956, as amended (the "BHCA") (a "BHCA Person") shall have the right to convert this Security if, after giving effect to such conversion, the BHCA Person and its affiliates and transferees would own or be deemed to own shares of Common Stock in excess of either the maximum number of shares of Common Stock which the BHCA Person is permitted to own under the BHCA and the regulations of the Board of Governors of the Federal Reserve System thereunder or such lower number as the relevant BHCA Person may have requested in writing to the Company. Any Security held by an assignee or transferee of a holder subject to the restriction on conversion in this paragraph shall continue to be subject to the same restriction on conversion, unless such Security was assigned or transferred (i) to the public in an offering registered under the Securities Act, (ii) in a transaction pursuant to Rule 144 or 144A under the Securities Act in which no person acquires Securities convertible into more than 2% of the outstanding Common Stock, (iii) in a single transaction to a third party who acquires a majority of the Common Stock without regard to the conversion of any Security so transferred or (iv) in any other manner permitted under the BHCA. The Company may rely on the representation of the relevant BHCA Person that a transfer has been made in a manner which permits conversion of such Security. The holder of this Security, by acceptance thereof, shall be deemed to have agreed to the foregoing restriction on transfers.
(b) the Conversion Rate will be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the Determination Date for such dividend or other distribution shall be increased by dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such Determination Date and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective immediately after the opening of business on the day following such Determination Date. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section 2(b), in case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this Section 2(b)) of the Common Stock on the Determination Date for such distribution, the Conversion Rate in effect at the opening of business on the day following such Determination Date shall be increased by dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such Determination Date plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on such Determination Date plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following such Determination Date. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section 2(b), in case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including securities, but excluding (i) the quotient obtained by dividing any rights, options or warrants referred to in paragraph (x2) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined hereinSection 2(b), and (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section 2(b) and (iv) any merger or consolidation to which Section 2(h) applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the Determination Date for such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section 2(b)) of the Common Stock on such Determination Date less the then fair market value (as determined in good faith by the Board of Directors of the Company) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following such Determination Date. If the Board of Directors determines the fair market value of any distribution for purposes of this paragraph (4) by reference to the actual or when issued trading market for any securities constituting such distribution, it must in doing so consider the prices in such market over the same period used in computing the current market price per share pursuant to paragraph (8) of this Section 2(b).
(5) In case the Company shall, by dividend or otherwise, make a Cash Distribution, then, and in each such case, immediately after the close of business on the Determination Date for such Cash Distribution, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on such Determination Date by a fraction (a) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 2(b)) of the Common Stock on such Determination Date less an amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product quotient of (1) the quotient obtained amount of such Cash Distribution divided by dividing .12 by 360 and (2) the number of days for shares of Common Stock outstanding on such Determination Date and (b) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 2(b)) of the Common Stock on such Determination Date.
(6) In case the Company or any Subsidiary shall make an Excess Purchase Payment, then, and in each such case, immediately prior to the opening of business on the day after the tender offer in respect of which such principal Excess Purchase Payment is to be made expires, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the Determination Date for such tender offer by a fraction (a) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 2(b)) of the Common Stock on such Determination Date less an amount was outstanding, equal to the quotient of (A) the Excess Purchase Payment divided by (IIB) the Conversion Price on number of shares of Common Stock outstanding (including any tendered shares) as of the Conversion Date, provided, that if Determination Date less the Company number of all shares validly tendered and not withdrawn as of the Determination Date and (b) the denominator of which shall have timely elected to pay the interest due on a Conversion Date in cash pursuant be equal to the terms hereof, subsection current market price per share (iidetermined as provided in paragraph (8) of this Section 2(b)) of the Common Stock as of such Determination Date.
(7) The partial reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 2(h) applies) shall not be used in deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the calculation effective date of such reclassification shall be deemed to be the Determination Date), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything outstanding immediately prior to the contrary contained herein, if on any Conversion Date:
(1) such reclassification into the number of shares of Common Stock at outstanding immediately thereafter (and the time authorizedeffective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", unissued as the case may be, and unreserved "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section 2(b)). Rights or warrants issued by the Company to all holders of its Common Stock entitling the holders thereof to subscribe for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in purchase shares of Common Stock;
, which rights or warrants (2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (xi) are not registered for resale pursuant deemed to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of transferred with such shares of Common Stock would result Stock, (ii) are not exercisable and (iii) are also issued in respect of future issuances of Common Stock, in each case in clauses (i) through (iii) until the occurrence of a violation of Sections 4(a)(iispecified event or events ("Trigger Event"), then, shall for purposes of this Section 2(b) not be deemed issued until the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount occurrence of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingearliest Trigger Event.
(C8) For the purpose of any computation under paragraphs (2), (4), (5) This Debenture or (6) of this Section 2(b) the current market price per share of Common Stock on any date shall be convertible calculated by the Company and be deemed to be the average of the daily Closing Prices for the five consecutive Trading Days commencing seven Trading Days before the earlier of (i) the day in question and (ii) the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term "ex date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one-half of one percent in such rate; PROVIDED, HOWEVER, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 2 shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Securities or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section 2(b) as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock at resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(c) Whenever the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth Conversion Rate is adjusted as provided in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b2(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing compute the principal amount converted adjusted Conversion Rate in accordance with Section 2(b) and shall prepare a certificate signed by the date of such conversions. In the event of any dispute or discrepancy, the records chief financial officer of the Holder Company setting forth the adjusted Conversion Rate and showing in reasonable detail the facts upon which such adjustment is based, and shall be controlling and determinative in promptly deliver such certificate to the absence holder of manifest errorthis Security.
Appears in 1 contract
Sources: Option Agreement and Zero Coupon Convertible Note (Alliance Pharmaceutical Corp)
Conversion. (A) This Debenture shall be convertible into shares of Common Stock at the option The Payee may elect to convert all or part of the Holder, in whole or in part principal of this Convertible Note and any accrued and unpaid interest at any time or times before May 3, 2012. The conversion price shall be sixty (60%) percent of the lowest trading price during the five (5) trading days prior to conversion, subject to adjustment pursuant to this Article “5” of this Note (the “Conversion Price”); provided, however, if an Event of Default pursuant to Article “10” of this Note occurs, this Note shall be subject to an interest rate of twenty (20%) percent and from time the Conversion Price formula shall be reduced to timeforty (40%) of the average of the lowest trading price during the five (5) trading days prior to conversion.
(i.) If the Payee does not provide written notice of its intention to convert some or all of the unpaid principal and any accrued and unpaid interest due, Payor shall pay the amount due on the Maturity Date.
(ii.) If all or part of this Note is converted pursuant to Paragraph “A” of this Article “5” of this Note, the shares shall be delivered to the Payee within three (3) business days after the Original Issue Date date upon which the Payor receives a Conversion Notice (subject such third (3rd) business day the “Conversion Share Due Date”), in the form attached hereto as Exhibit “A”; provided, however, that a Conversion Notice delivered after 1:00 o’clock P.M. on any business day shall be deemed to be delivered on the next following business day.
(iii.) If all or part of this Note is converted pursuant to Paragraph “A” of this Article “5” of this Note, all shares delivered to the limitations Payee shall be free-trading if the shares are issued after six (6) months after the date of this Note. If any shares delivered to the Payee are not free-trading, on conversion set forth May 3, 2012, at its own cost, the Company shall cause its counsel to issue an opinion letter to the Company’s transfer agent, or its successor (the “Transfer Agent”), that the said shares may be sold or transferred without restriction or limitation in Section 4(a)(iireliance on Rule 144 promulgated under the Securities Act of 1933, as amended, and direct the Transfer Agent to replace such shares with a certificate that does not contain a restrictive legend. After the receipt by the Transfer Agent of the certificate representing such shares from Tangiers (or its broker) hereof)requesting the issuance of an unrestricted certificate, the Company shall cooperate fully with the Transfer Agent. If the newly issued unrestricted stock is not delivered to Tangiers or its broker within four (4) business days after the receipt of the restricted shares, the Company shall pay an additional amount of one thousand dollars ($1,000) per calendar day for each day that delivery of the unrestricted stock certificate is delayed; provided, however, that receipt of the restricted certificate after 1:00 p.m. local time shall be deemed to be receipt on the next following business day. The Company acknowledges that it would be extremely difficult or impracticable to determine Tangiers’ actual damages and costs resulting from the delay in making delivery of the unrestricted stock certificate and the inclusion herein of any such additional amounts are the agreed upon liquidated damages representing a reasonable estimate of those damages and costs and do not constitute a penalty.
(B) The Payor shall pay any and all stock transfer fees. No fractions of shares or scrip representing fractions of shares will be issued upon conversion, but the number of shares issued shall be rounded to the nearest whole share, based upon the total number of shares of Common Stock issuable to be issued to the Payee. The date upon which a conversion hereunder Conversion Notice is received by the Payor shall be determined by adding deemed to be the sum date upon which the Payee has delivered the conversion notice duly executed, to the Payor; provided, however, that a Conversion Notice delivered after 1:00 o’clock P.M. on any business day shall be deemed to be delivered on the next following business day. Upon receipt of the Shares for the full conversion and/or payment of this Note, the Payee shall deliver this Note to the Payor marked “cancelled.”
(iC) If the quotient obtained by dividing (x) Payor fails to deliver shares timely pursuant to this Article “5” of this Note, the outstanding principal Payor shall pay to the Payee an additional amount of this Debenture shares equal in number to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of one (1%) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation percent of the number of shares of Common Stock issuable required to be issued per calendar day for each calendar day that the shares are delayed after the Conversion Share Due Date. The Payor acknowledges that it would be extremely difficult or impracticable to determine the Payee’s actual damages and costs resulting from the delay in delivering the Shares on or prior to the Conversion Share Due Date and the inclusion herein of any such additional amounts are the agreed upon liquidated damages representing a conversion hereunderreasonable estimate of those damages and costs and do not constitute a penalty.
(BD) Notwithstanding anything If, upon ▇▇▇▇▇▇▇▇’ request to convert all or part of this Note pursuant to this Article “5” of this Note, the contrary contained hereinshares are not available by reason of the Payor not having enough authorized and unissued shares to issue the shares to Tangiers, the Payor shall take all necessary action to increase the number of authorized shares of the Company’s Common Stock to satisfy Tangiers’ request to convert all or part of this Note.
(E) In order to preserve the conversion rights of the Payee, the conversion rate is subject to adjustment if on certain events occur, including, but not limited to, any Conversion Dateof the events that are set forth below:
(1i.) The issuance of any previously authorized or newly authorized shares (common or any other securities convertible into common) of the Payor for less than the conversion price per share at the time of conversion pursuant to this Article “5” of this Note;
(ii.) A recapitalization of the outstanding shares of the Payor which has the effect of changing the percentage of shares which this Note may be converted into in relation to the total number of outstanding shares;
(iii.) The payment of any stock dividends;
(iv.) The distribution to any holders of shares of Common Stock at the time authorizedPayor’s securities, unissued and unreserved for all purposes, evidences of indebtedness of the Payor or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
assets (2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6excluding cash dividends paid from retained earnings);
(3v.) The issuance after the Common Stock is not listed date hereof of any stock options, warrants or quoted for trading on other rights to acquire shares in the OTC or on Payor at a Subsequent Market;price less than the current market value of such shares; and
(4vi.) Any capital reorganization by the Company has failed Payor, any reclassification or recapitalization of the Payor’s capital stock, or any transfer of all or substantially all the assets of the Payor to timely satisfy its conversion obligations hereunder; oror consolidation or merger of the Payor with or into any other Person.
(5F) Upon the issuance occurrence of any of the above events (any of such shares of Common Stock would result in events is hereinafter referred to as a violation of Sections 4(a)(ii“Dilution Event”), then, in such event, the Company may not pay Payor will immediately take whatever measures are necessary to insure that the percentage interest in kind and must pay interest in cash the Payor which the Note may be converted into would not be increased or reduced. Any adjustment which is required by delivering, within three Trading Days this Paragraph “F” of each applicable Conversion Date, an amount in cash equal this Article “5” of this Note shall be deemed effective retroactive to the product of (a) the outstanding principal amount date of the Debentures Dilution Event. The provisions of this Paragraph “F” of this Article “5” of this Note shall be applicable to any Dilution Event which occurs at any time after the date of this Note. If any of the Dilution Events occur, the Payor will mail or cause to be converted on such Conversion Date and (bmailed a notice pursuant to Paragraph “C” of Article “20,” to the Payee of this Note specifying the Dilution Event(s) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandinghas occurred.
(CG) This Debenture As long as this Note is outstanding and no Event of Default has occurred, neither Tangiers nor its affiliates shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to timeengage in any short sale of, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debentureor sell put options or similar instruments with respect to, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorCompany’s stock.
Appears in 1 contract
Conversion. (Aa) This Debenture shall be convertible into shares of Common Stock at Subject to and upon compliance with the option provisions of the HolderFiscal Agency Agreement, in whole or in part a holder of Securities is entitled, at its option, at any time and from time to time, on or after the Original Issue Date (subject to date that is the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum later of (i) the quotient obtained by dividing Exchange Date and (xii) the outstanding date of the effectiveness of the Registration Statement to be filed by the Company under the Securities Act relating to the Common Stock issuable upon conversion of the Restricted Securities (the "Registration Date") and on or before the close of business on April 15, 2004 or in the case of a Security or portion thereof that is called for redemption by the Company, or the holder thereof elects to have such Security or portion thereof redeemed by the Company pursuant to Section 3(d) hereof, then in respect of such Security or such portion thereof until and including, but (unless the Company and the Guarantor default in making the payment due upon redemption) not after, the close of business on the 15th day next preceding the date fixed for redemption (or if such date is not a business day, as described in Section 11 hereof in New York City, then the next succeeding business day), to convert such Security (or any portion of the principal amount thereof which is U.S. $1,000 or an integral multiple thereof), at the principal amount thereof, or of such portion, into fully paid and nonassessable shares ("Conversion Shares") (calculated as to each conversion to the nearest 1/1000 of a share) of common stock, par value $.10 per share of the Company ("Common Stock"), at a Conversion Price equal to U.S. $16.50 aggregate principal amount of this Debenture to be converted and Securities for each Conversion Share (ythe "Conversion Price") (or at the current adjusted Conversion Price if an adjustment has been made as provided herein) by surrender of the Security, or in the case of a Security submitted for redemption pursuant to Section 3(d) hereof, satisfactory evidence of such submission, together with (as defined hereini) if a Bearer Security, all unmatured coupons and any matured coupons in default appertaining thereto, PAGE and if a Registered Security (if so required by the Company or the Fiscal Agent), instruments of transfer in form satisfactory to the Company and the Fiscal Agent, duly executed by the registered holder or by his duly authorized attorney, and (ii) the conversion notice hereon duly executed (x) at the principal corporate trust office of the Fiscal Agent, or at such other office or agency of the Company as may be designated by it for such purpose in New York City, or (y) subject to any laws or regulations applicable thereto and subject to the right of the Company to terminate the appointment of any such conversion agency, at the office of the Principal Agent in London, and if the Securities are listed on the Luxembourg Stock Exchange and so long as listed thereon, Bankers Trust Luxembourg, S.A, ▇▇ ▇▇▇▇▇▇▇▇▇, ▇. ▇. ▇▇▇▇▇▇▇▇▇, L-2450 Luxembourg, Luxembourg, or at such other offices or agencies as the Company may designate.
(b) In the case of a conversion after the close of business on a Record Date next preceding any interest payment date and before the opening of business on such interest payment date, the holder of record of a Registered Security at such Record Date is to receive an installment of interest on the interest payment date. No payment or adjustment shall be made upon any conversion for dividends on the Common Stock delivered on conversion. Except as set forth in the first sentence of this subsection (b), accrued interest from the immediately preceding interest payment date until the date of conversion (together with any Additional amounts, if any, thereon) will be paid to the holder within five business days after presentment for conversion on account of any interest accrued on the Securities surrendered for conversion, except that interest on Registered Securities surrendered for conversion after the close of business on a Record Date and before the opening of business on the next succeeding interest payment date shall be paid in an amount equal to (I) the product of (x) interest payable on such interest payment date on the outstanding principal amount being surrendered for conversion. No fractions of this Debenture to shares or scrip representing fractions of shares will be converted and issued or delivered on conversion, but instead of any fractional interest the Company shall pay a cash adjustment as provided in the Fiscal Agency Agreement. Such conversion shall be so effected by the Company, except payment of accrued interest (ytogether with Additional Amounts, if any, thereon) which will be paid by the product Paying Agent.
(i) In case at any time the Company shall pay or make a dividend or other distribution on any class of (1) capital stock of the quotient obtained by dividing .12 by 360 and (2) the number Company in shares of days for which such principal amount was outstandingCommon Stock, divided by (II) the Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced so that the same shall equal the price determined by multiplying such Conversion Date, provided, that if Price by a fraction of which the Company numerator shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderoutstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the PAGE total number of shares of Common Stock constituting such dividend or other distribution, such adjustment to become effective immediately after the opening of business on the day following the date fixed for such determination.
(ii) In the case at any time the Company shall (A) subdivide its outstanding shares of Common Stock, (B) Notwithstanding anything combine its outstanding shares of Common Stock into a smaller number of shares, or (C) issue by reclassification of its shares of Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation) any shares of capital stock, the Conversion Price in effect at the effective date of such subdivision, combination or reclassification shall be proportionately adjusted so that the holder of any Security surrendered for conversion after such time shall be entitled to receive the contrary contained hereinaggregate number and kind of shares which, if on such Security had been converted immediately prior to such time, the holder would have owned upon such conversion and been entitled to receive upon such subdivision, combination or reclassification. Such adjustment shall become effective immediately after the effectiveness of such subdivision, combination or reclassification. Such adjustment shall be made successively whenever any Conversion Date:event listed above shall occur.
(1iii) In case at any time the Company shall fix a record date for the issuance of rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase Common Stock at a price per share less than the current market price per share of Common Stock (determined as provided in paragraph (v) of this subsection (c)) on such record date, the Conversion Price in effect at the opening of business on the day following such record date shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in close of business on such record date plus the number of shares of Common Stock;Stock which the aggregate of the offering price of the total number of shares so offered for subscription or purchase would purchase at such current market price per share of Common Stock and the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following such record date. Such reduction shall be made successively whenever such a record date is fixed; and in the event that such rights or warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such record date had not been fixed.
(2iv) In case at any time the Underlying Shares issuable Company shall fix a record date for such conversion the making of a distribution, by dividend or otherwise, to all holders of its shares if Common Stock, of PAGE evidences of its indebtedness or assets (including securities, but excluding any interest payable dividend or distribution referred to in sharesparagraph (i) of this subsection (xc), any rights or warrants referred to in paragraph (iii) are of this subsection (c), and any dividend or distribution paid in cash out of the retained earnings of the Company), then in each such case the Conversion Price in effect after such record date shall be determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, of which numerator shall be the total number of outstanding shares of Common Stock multiplied by the current market price per share of Common Stock (determined as provided in paragraph (v) of this subsection (c)) on such record date, less the fair market value (as determined by the Board of Directors of the Company, whose determination shall be conclusive and described in a statement filed with the Principal Agent) of the portion of the assets or evidences of indebtedness so to be distributed, and of which denominator shall be the total number of outstanding shares of Common Stock multiplied by such current market price per share of Common Stock. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that such distribution is not registered for resale pursuant so made, the Conversion Price shall again be adjusted to an effective Underlying Shares Registration Statement be the Conversion Price which would then be in effect if such record date has not been fixed.
(v) For the purpose of any computation under paragraphs (iii) and (yiv) may not of this subsection (c), the current market price per share of Common Stock on any date shall be sold without volume restrictions pursuant deemed to Rule 144(k) promulgated under be the Securities Act average of the Closing Prices (as defined below) for the 15 consecutive trading days upon which the principal trading market for the Common Stock is open and selected by the Company commencing not less than 20 nor more than 30 days before the day in Section 6);
(3) question. The "Closing Price" for any day shall be the last reported sales prices regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices regular way, in either case on the American Stock Exchange or, if the Common Stock is not or admitted to trading on such exchange, on the principal national securities exchange on which the Common Stock is listed or quoted for admitted to trading or, if not listed or admitted to trading on any national securities exchange, the OTC closing sale price quoted on the Nasdaq National Market, or on a Subsequent Market;if not so quoted, as determined by the Company.
(4vi) The Company may make such adjustments in the Conversion Price, in addition to those required by paragraphs (i), (ii) and, (iii) selected by the Company has failed of this section, as it considers to timely satisfy its conversion obligations hereunder; orbe advisable in order that any event treated for United States Federal income tax purposes as a dividend of stock or stock rights shall not be taxable to the recipients.
(5vii) No adjustment in the issuance Conversion Price shall be required unless such adjustment would require an increase or decrease of at least U.S. $.25 in such Conversion Price; provided, however, that any adjustment which by reason of this PAGE paragraph (vii) is not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this subsection (c) shall be made to the nearest cent or to the nearest 1/1000 of a share, as the case may be.
(d) Whenever the Conversion Price is adjusted and in the event of certain other corporate actions, as herein provided, the Company shall give notice, all as provided in the Fiscal Agency Agreement.
(e) The Company shall file, as soon as practicable following the Closing Date, a shelf registration statement with the United States Securities and Exchange Commission covering the resale of the shares of Common Stock would result in a violation issuable upon conversion of Sections 4(a)(iithe Restricted Securities ("Registrable Securities"), then, ; provided that any holder of any Restricted Securities or Registrable Securities shall not sell any shares pursuant to such registration statement unless and until it provides to the Company such information as the Company may not pay interest reasonably request for use in kind connection with the identification of such holder as a selling stockholder in such registration statement, or any prospectus included therein, and must pay interest no such sale shall be made by such holder pursuant to such registration statement unless and until such information is included by the Company in cash such registration statement or prospectus. The Company shall in good faith use its best efforts and at its cost to cause such registration statement to be declared effective as promptly as practicable thereafter and to include in such registration statement the information provided by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to a holder as a selling stockholder and shall notify the product of (a) the outstanding principal amount Principal Agent of the Debentures effectiveness thereof and agrees to use its best efforts to (i) cause all registrations with, and to obtain any approvals by, any governmental authority under any Federal or state law of the United States that may be converted on required in connection with the conversion of the Securities into Common Stock and the resale thereof, (ii) maintain the effectiveness of such Conversion Date and (bregistrations until the date that Rule 144(k) under the product Securities Act is available for the resale of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock issuable upon conversion of the Restricted Securities (or other securities issuable upon conversion of the Securities) and (iii) to list the shares of Common Stock required to be issued or delivered upon conversion of Securities (or other securities issuable upon conversion of the Securities) prior to such issue or delivery on such national securities exchange or automated over-the-counter trading market where such Common Stock is listed or traded at the option time of such delivery. The Company and the HolderGuarantor, in whole or in part at any time jointly and from time severally, shall, without limitation as to time, after the Original Issue Date (subject indemnify and hold harmless, to the limitations on conversion set forth fullest extent permitted by law, each holder of Registrable Securities, the officers, directors and agents and employees of each of them, each person who controls such holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended) and the officers, directors, agents and employees of any PAGE such controlling person, from and against all losses, claims, damages, liabilities, costs (including, without limitation, the costs of preparation and attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering any such registration statement, or related prospectus or in any amendment or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are based solely upon information, if any, furnished in writing to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debentureby such holder expressly for use therein; provided, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and that the Company shall maintain records showing not be liable to any holder of Registrable Securities to the principal amount converted and the date extent that any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if either (a)(i) such conversions. In the event of any dispute holder failed to send or discrepancy, the records deliver as required a copy of the Holder shall be controlling final prospectus with or prior to the delivery of written confirmation of the sale by such holder of a Registrable Security to the person asserting the claim from which such Losses arise and determinative (ii) the prospectus would have completely corrected such untrue statement or alleged untrue statement or such omission or alleged omission; or (b)(i) such untrue statement or alleged untrue statement, omission or alleged omission is completely corrected in an amendment or supplement to the absence prospectus and (ii) having previously been furnished by or on behalf of manifest error.the Company with copies of the prospectus as so amended or supplemented, such holder thereafter fails to deliver as required such prospectus as so amended or supplemented, prior to or concurrently with the s
Appears in 1 contract
Conversion. (i) Conversion at Option of Holder.
(A) This Debenture shall ------------------------------ be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding equals the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and by (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if -------- the Company Holder shall have timely elected to pay receive the interest due on a Conversion Date in cash pursuant to the terms hereofcash, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a ---------- "Conversion Notice") including a completed Conversion Schedule in the form of ----------------- Schedule 1 to the Conversion Notice (on each Conversion Date, the "Conversion ---------- ---------- Schedule"). The Conversion Notice Schedule shall set forth the remaining principal -------- amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal --------------- amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made entries set forth in the Conversion NoticeSchedule. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Sources: Convertible Debenture (Aquatic Cellulose International Corp)
Conversion. (A) This Debenture 4.1 Subject as hereinafter provided and without prejudice to any rights with respect to any accrued but unpaid dividends on Preference Shares, each Preference Shareholder shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part entitled at any time and in the manner set out in this Paragraph 4 to convert all or a portion of his/its Preference Shares into fully paid Ordinary Shares (the "CONVERSION RIGHT") at the rate of 1 Ordinary Share for every 1.03 Preference Shares, (subject to adjustment in accordance with Paragraph 4.7 below (the "CONVERSION RATE"). Provided that, for the purposes of ensuring the continued listing of the Purchaser on HKSE after the conversion of the Preference Shares, the Directors may, in their absolute discretion, decline to allot and issue Ordinary Shares if, as a result of the exercise by a Preference Shareholder of his/its Conversion Right, the Ordinary Shares issued upon such conversion together with any Ordinary Shares then in issue would result in the minimum prescribed percentage of Ordinary Shares in "public hands" (as defined in the Listing Rules from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). not being satisfied.
4.2 The number of shares of Common Stock issuable upon a conversion hereunder Conversion Right shall be determined exercisable by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions Preference Shareholder by delivering to the Company Purchaser the certificate relating to the Preference Shares to be converted ("PREFERENCE SHARE CERTIFICATE") together with a duly completed notice of conversion substantially in the form attached hereto as Exhibit A from time to time prescribed by the board of directors (a "CONVERSION NOTICE") (which notice shall specify a date being not less than [5 Business Days] after the date of the Conversion NoticeNotice as the date for the conversion to be effected (the "CONVERSION DATE"). The Conversion Notice shall set forth ) in respect of all or a portion of the remaining principal amount of this Debenture Preference Shares held by such Preference Shareholder and all accrued and unpaid interest thereon subsequent delivering the same to the conversion Purchaser or to the agent of the Purchaser appointed for such purpose at issue. The date on which any time not less than [5 Business Days] prior to a Conversion Notice is delivered is Date, together with such other evidence, if any, as the "Conversion Date." Unless board of directors may reasonably require to prove the Holder is converting title of the entire principal amount outstanding under this Debenture, person exercising such right and the Holder is not be required to physically surrender this Debenture to the Company payment of all taxes and stamp issue and registration duties (if any) arising on conversion in order to effect conversionsany jurisdiction. Subject to Section 4(b), each A Conversion Notice, once given, shall may not be irrevocablewithdrawn without the consent in writing of the Purchaser. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal Subject to the applicable conversionDirectors not exercising their discretion in accordance with paragraph 4.1, which conversion shall be evidenced by notations made take place on the Conversion Date specified in the Conversion NoticeNotice (in the place of delivery). The Holder and Preference Share Certificate shall be cancelled on the Company shall maintain records showing the principal amount converted and the date of such conversionsrelevant Conversion Date. In the event that the Preference Share Certificate represents a greater number of Preference Shares than is to be converted, the Purchaser shall, within [3 Business Days] after the relevant Conversion Date issue to the Preference Shareholder a new Preference Share Certificate for the balance of the Preference Shares which are not to be converted.
4.3 Preference Shareholders shall be entitled to be paid any accrued but unpaid dividends in respect of Preference Shares. The Ordinary Shares to which any Preference Shareholder shall become entitled in consequence of exercising his/its right to convert shall carry the right to receive all dividends declared on such Ordinary Shares and other distributions declared made or paid upon the Ordinary Shares in respect of the financial year of the Purchaser in which such shares are allotted and shall rank pari passu in all other respects and form one class with the Ordinary Shares in issue at the relevant Conversion Date and fully paid save that they shall not be entitled to any dividends or other distributions declared, paid or made either in respect of any dispute financial period ended prior to such Conversion Date or discrepancyby reference to a record date prior to such Conversion Date or to the extent that the Preference Shares so converted shall already have participated in such dividend.
4.4 Within [3 Business Days] after the relevant Conversion Date, the records Purchaser shall forward to each holder a definitive certificate for the appropriate number of fully paid Ordinary Shares and, if appropriate, a cheque in respect of any fractional entitlement.
4.5 So long as Preference Shares remain capable of being converted into Ordinary Shares, then if the Holder Purchaser is placed in Liquidation the Purchaser shall be controlling and determinative forthwith give notice thereof in the absence of manifest errorwriting to all Preference Shareholders.
Appears in 1 contract
Conversion. (Aa) This Debenture shall be convertible into shares of Common Stock at Subject to and upon compliance with the option provisions of the HolderFiscal Agency Agreement, in whole or in part a holder of Securities is entitled, at its option, at any time and from time to time, on or after the Original Issue Date (subject to date that is the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum later of (i) the quotient obtained by dividing Exchange Date and (xii) the outstanding date of the effectiveness of the Registration Statement to be filed by the Company under the Securities Act relating to the Common Stock issuable upon conversion of the Restricted Securities (the "Registration Date") and on or before the close of business on June 30, 2004 or in the case of a Security or portion thereof that is called for redemption by the Company, or the holder thereof elects to have such Security or portion thereof redeemed by the Company pursuant to Section 3(d) hereof, then in respect of such Security or such portion thereof until and including, but (unless the Company and the Guarantor default in making the payment due upon redemption) not after, the close of business on the 15th day next preceding the date fixed for redemption (or if such date is not a business day, as described in Section 11 hereof in New York City, then the next succeeding business day), to convert such Security (or any portion of the principal amount thereof which is U.S. $1,000 or an integral multiple thereof), at the principal amount thereof, or of such portion, into fully paid and nonassessable shares ("Conversion Shares") (calculated as to each conversion to the nearest 1/1000 of a share) of common stock, par value $.10 per share of the Company ("Common Stock"), at a Conversion Price equal to U.S. $12.10 aggregate principal amount of this Debenture to be converted and Securities for each Conversion Share (ythe "Conversion Price") (or at the current adjusted Conversion Price if an adjustment has been made as provided herein) by surrender of the Security, or in the case of a Security submitted for redemption pursuant to Section 3(d) hereof, satisfactory evidence of such submission, together with (as defined hereini) if a Bearer Security, all unmatured coupons and any matured coupons in default appertaining thereto, and if a Registered Security (if so required by the Company or the Fiscal Agent), instruments of transfer in form satisfactory to the Company and the Fiscal Agent, duly executed by the registered holder or by his duly authorized attorney, and (ii) the conversion notice hereon duly executed (x) at the principal corporate trust office of the Fiscal Agent, or at such other office or agency of the Company as may be designated by it for such purpose in New York City, or (y) subject to any laws or regulations applicable thereto and subject to the right of the Company to terminate the appointment of any such conversion agency, at the office of the Principal Paying Agent in London, and if the Securities are listed on the Luxembourg Stock Exchange and so long as listed thereon, Bankers Trust Luxembourg, S.A, 14 Boulevard, F.D. Roosevelt, L-2450 Luxembourg, Lu▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇fices or agencies as the Company may designate. In lieu of issuing shares of Common Stock upon such conversion, the Company may elect, in its sole discretion, to pay cash (including Additional Amounts, if any) in respect of all or a portion of the shares of Common Stock otherwise issuable upon such conversion based on the Market Price of such shares, all as provided in the Fiscal Agency Agreement.
(b) In the case of a conversion after the close of business on a Record Date next preceding any interest payment date and before the opening of business on such interest payment date, the holder of record of a Registered Security at such Record Date is to receive an installment of interest on the interest payment date. No payment or adjustment shall be made upon any conversion for dividends on the Common Stock delivered on conversion. Except as set forth in the first sentence of this subsection (b), accrued interest from the immediately preceding interest payment date until the date of conversion (together with any Additional amounts, if any, thereon) will be paid to the holder within five business days after presentment for conversion on account of any interest accrued on the Securities surrendered for conversion, except that interest on Registered Securities surrendered for conversion after the close of business on a Record Date and before the opening of business on the next succeeding interest payment date shall be paid in an amount equal to (I) the product of (x) interest payable on such interest payment date on the outstanding principal amount being surrendered for conversion. No fractions of this Debenture to shares or scrip representing fractions of shares will be converted and issued or delivered on conversion, but instead of any fractional interest the Company shall pay a cash adjustment as provided in the Fiscal Agency Agreement. Such conversion shall be so effected by the Company, except payment of accrued interest (ytogether with Additional Amounts, if any, thereon) which will be paid by the product Paying Agent in accordance with the provisions for payment of interest (1together with Additional Amounts, if any, thereon) set forth herein.
(i) In case at any time the quotient obtained by dividing .12 by 360 and (2) Company shall pay or make a dividend or other distribution on any class of capital stock of the number Company in shares of days for which such principal amount was outstandingCommon Stock, divided by (II) the Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced so that the same shall equal the price determined by multiplying such Conversion Date, provided, that if Price by a fraction of which the Company numerator shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderoutstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares of Common Stock constituting such dividend A-14PAGE or other distribution, such adjustment to become effective immediately after the opening of business on the day following the date fixed for such determination.
(ii) In the case at any time the Company shall (A) subdivide its outstanding shares of Common Stock, (B) Notwithstanding anything combine its outstanding shares of Common Stock into a smaller number of shares, or (C) issue by reclassification of its shares of Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation) any shares of capital stock, the Conversion Price in effect at the effective date of such subdivision, combination or reclassification shall be proportionately adjusted so that the holder of any Security surrendered for conversion after such time shall be entitled to receive the contrary contained hereinaggregate number and kind of shares which, if on such Security had been converted immediately prior to such time, the holder would have owned upon such conversion and been entitled to receive upon such subdivision, combination or reclassification. Such adjustment shall become effective immediately after the effectiveness of such subdivision, combination or reclassification. Such adjustment shall be made successively whenever any Conversion Date:event listed above shall occur.
(1iii) In case at any time the Company shall fix a record date for the issuance of rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase Common Stock at a price per share less than the current market price per share of Common Stock (determined as provided in paragraph (v) of this subsection (c)) on such record date, the Conversion Price in effect at the opening of business on the day following such record date shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in close of business on such record date plus the number of shares of Common Stock;Stock which the aggregate of the offering price of the total number of shares so offered for subscription or purchase would purchase at such current market price per share of Common Stock and the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following such record date. Such reduction shall be made successively whenever such a record date is fixed; and in the event that such rights or warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such record date had not been fixed.
(2iv) In case at any time the Underlying Shares issuable Company shall fix a record date for such conversion the making of a distribution, by dividend or otherwise, to all holders of its shares if Common Stock, of evidences of its indebtedness or assets (including securities, A-15PAGE but excluding any interest payable dividend or distribution referred to in sharesparagraph (i) of this subsection (xc), any rights or warrants referred to in paragraph (iii) are of this subsection (c), and any dividend or distribution paid in cash out of the retained earnings of the Company), then in each such case the Conversion Price in effect after such record date shall be determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, of which numerator shall be the total number of outstanding shares of Common Stock multiplied by the current market price per share of Common Stock (determined as provided in paragraph (v) of this subsection (c)) on such record date, less the fair market value (as determined by the Board of Directors of the Company, whose determination shall be conclusive and described in a statement filed with the Fiscal Agent) of the portion of the assets or evidences of indebtedness so to be distributed, and of which denominator shall be the total number of outstanding shares of Common Stock multiplied by such current market price per share of Common Stock. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that such distribution is not registered for resale pursuant so made, the Conversion Price shall again be adjusted to an effective Underlying Shares Registration Statement be the Conversion Price which would then be in effect if such record date has not been fixed.
(v) For the purpose of any computation under paragraphs (iii) and (yiv) may not of this subsection (c), the current market price per share of Common Stock on any date shall be sold without volume restrictions pursuant deemed to Rule 144(k) promulgated under be the Securities Act average of the Closing Prices (as defined below) for the 15 consecutive trading days upon which the principal trading market for the Common Stock is open and selected by the Company commencing not less than 20 nor more than 30 days before the day in Section 6);
(3) question. The "Closing Price" for any day shall be the last reported sales prices regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices regular way, in either case on the American Stock Exchange or, if the Common Stock is not or admitted to trading on such exchange, on the principal national securities exchange on which the Common Stock is listed or quoted for admitted to trading or, if not listed or admitted to trading on any national securities exchange, the OTC closing sale price quoted on the Nasdaq National Market, or on a Subsequent Market;if not so quoted, as determined by the Company.
(4vi) The Company may make such adjustments in the Conversion Price, in addition to those required by paragraphs (i), (ii) and, (iii) selected by the Company has failed of this section, as it considers to timely satisfy its conversion obligations hereunder; orbe advisable in order that any event treated for United States Federal income tax purposes as a dividend of stock or stock rights shall not be taxable to the recipients.
(5vii) No adjustment in the issuance Conversion Price shall be required unless such adjustment would require an increase or decrease of at least U.S. $.25 in such Conversion Price; provided, however, that any adjustment which by reason of this paragraph (vii) is not required to be made shall be carried
A- 16PAGE forward and taken into account in any subsequent adjustment. All calculations under this subsection (c) shall be made to the nearest cent or to the nearest 1/1000 of a share, as the case may be.
(d) Whenever the Conversion Price is adjusted and in the event of certain other corporate actions, as herein provided, the Company shall give notice, all as provided in the Fiscal Agency Agreement.
(e) The Company shall file, as soon as practicable following the Closing Date, a shelf registration statement with the United States Securities and Exchange Commission covering the resale of the shares of Common Stock would result in a violation issuable upon conversion of Sections 4(a)(iithe Securities ("Registrable Securities"), then, ; provided that any holder of any Securities or Registrable Securities shall not sell any shares pursuant to such registration statement unless and until it provides to the Company such information as the Company may not pay interest reasonably request for use in kind connection with the identification of such holder as a selling stockholder in such registration statement, or any prospectus included therein, and must pay interest no such sale shall be made by such holder pursuant to such registration statement unless and until such information is included by the Company in cash such registration statement or prospectus. The Company shall in good faith use its best efforts and at its cost to cause such registration statement to be declared effective as promptly as practicable thereafter and to include in such registration statement the information provided by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to a holder as a selling stockholder and shall notify the product of (a) the outstanding principal amount Fiscal Agent of the Debentures effectiveness thereof and agrees to use its best efforts to (i) cause all registrations with, and to obtain any approvals by, any governmental authority under any Federal or state law of the United States that may be converted on required in connection with the conversion of the Securities into Common Stock and the resale thereof, (ii) maintain the effectiveness of such Conversion Date and (bregistrations until the date that Rule 144(k) under the product Securities Act is available for the resale of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock issuable upon conversion of the Restricted Securities (or other securities issuable upon conversion of the Securities) and (iii) to list the shares of Common Stock required to be issued or delivered upon conversion of Securities (or other securities issuable upon conversion of the Securities) prior to such issue or delivery on such national securities exchange or automated over-the-counter trading market where such Common Stock is listed or traded at the option time of such delivery. The Company and the HolderGuarantor, in whole or in part at any time jointly and from time severally, shall, without limitation as to time, after the Original Issue Date (subject indemnify and hold harmless, to the limitations on conversion set forth fullest extent permitted by law, each holder of Registrable Securities, the officers, directors and agents and employees of each of them, each person who controls such holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended) and the officers, directors, agents and employees of any such controlling person, from and against all losses, claims, damages, liabilities, costs (including, without limitation, the costs of preparation and attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering any such registration statement, or related prospectus or in any amendment or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are based solely upon information, if any, furnished in writing to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debentureby such holder expressly for use therein; provided, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and that the Company shall maintain records showing not be liable to any holder of Registrable Securities to the principal amount converted and the date extent that any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if either (a)(i) such conversions. In the event of any dispute holder failed to send or discrepancy, the records deliver as required a copy of the Holder shall be controlling final prospectus with or prior to the delivery of written confirmation of the sale by such holder of a Registrable Security to the person asserting the claim from which such Losses arise and determinative in (ii) the absence of manifest error.prospectus would have completely corrected such untrue statement or alleged untrue statement or such o
Appears in 1 contract
Conversion. (Aa) This Debenture shall Note may be convertible into shares of Common Stock at the option of the Holderconverted, in whole or in part at any time and from time to timepart, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of into the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient as is obtained by dividing .12 by 360 and (yi) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture unpaid Principal Amount and all accrued and unpaid interest thereon subsequent as of the Conversion Date (as defined below) by (ii) Three Dollars and 50/100 ($3.50) or such lesser price per share of Common Stock as may be offered to the Company's shareholders in connection with any rights offering effected within twelve (12) months from the date hereof (the "Conversion Price").
(b) Written notice of conversion at issue. The (the "Conversion Request") shall be delivered to the Company by the Holder specifying a date no less than sixty one (61) days after the date such notice is given on which a Conversion Notice this Note is delivered is to be converted into Common Stock (the "Conversion Date." Unless "). The Conversion Request shall be given to the Holder Company at the address provided in Section 15 below or, if no such address appears or is converting given, at the entire place where the principal executive office of the Company is located. In addition to specifying the Conversion Date, the Conversion Request shall specify the principal amount outstanding under this Debentureof the Note converted and the amount of accrued and unpaid interest converted. On the Conversion Date, the Holder is not be required to physically shall surrender this Debenture Note to the Company in order to effect conversions. Subject to Section 4(b)exchange for the Common Stock of the Company as provided herein, each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the manner and at the place designated by the Company.
(c) As soon as practicable after the Conversion Notice. The Holder and Date, the Company shall maintain records showing issue and deliver to Holder, upon surrender of the Note, (i) a certificate or certificates for the number of full shares of Common Stock issuable upon conversion of the Note in accordance with the provisions hereof, and (ii) a check or cash in respect of any fraction of a share as provided in Section 1(d) hereof. Such conversion shall be deemed to have been effected immediately prior to the close of business on the Conversion Date, and as of the Conversion Date the Note (to the extent of principal amount converted repaid) shall be deemed cancelled and the Note (or the amount of principal repaid, if less than all) shall cease to accrue interest, and Holder shall be deemed to have become a shareholder of record; provided, however, that, in the event the Conversion Date falls on a date when the Company's securities transfer books are closed, Holder shall not be deemed to be a record holder of such conversionsthe Company's Common Stock for any purpose until the close of business on the next succeeding day on which the Company's securities transfer books shall be open. In the event of any dispute or discrepancya partial conversion, the records Company shall issue to Holder on the Conversion Date a new Note in the principal amount of unconverted principal.
(d) No fractional shares of Common Stock shall be issued upon conversion of this Note, but an adjustment in check or cash will be made in respect of any fraction of a share which would otherwise be issuable upon conversion of the Note.
(e) The Company will at all times reserve from its authorized but unissued shares a sufficient number of shares to provide for conversion of this Note.
(f) The Holder shall represents, warrants, and covenants to the Company that he is acquiring this Note and any shares of Common Stock issuable upon conversion of this Note as an investment for his own account, and not for resale. The Holder further understands that the transferability of this Note and the shares of Common Stock that may be controlling issued upon conversion of this Note is limited and determinative that it is not anticipated that there will be any public market for this Note or for the shares of Common Stock that may be issued upon conversion of this Note, and that it may not be possible to sell or dispose of this Note or any shares of Common Stock that may be issued upon conversion of this Note. The Holder further acknowledges that neither this Note nor the shares of Common Stock issuable upon conversion of this Note have been registered under the Securities Act of 1933, as amended, or the securities laws of any state, and that a legend will be placed on the certificates representing any shares of Common Stock that may be issued upon conversion of this Note in substantially the absence of manifest errorfollowing form: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR QUALIFIED UNDER THE SECURITIES LAWS OF ANY STATE (THE "LAW"). SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NEITHER SAID SECURITIES NOR ANY INTEREST THEREIN MAY BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE ACT AND QUALIFICATION UNDER THE LAW OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED AS TO SAID SALE OR OFFER.
Appears in 1 contract
Sources: Convertible Note and Security Agreement (Macc Private Equities Inc)
Conversion. At the Effective Time of the Merger:
(Ai) This Debenture shall be convertible into all shares of Common Stock at the option of the HolderCompany (the “Company Common Stock”), that are owned directly or indirectly by the Company or any subsidiary of the Company shall be cancelled, and no securities of Parent or other consideration shall be delivered in whole exchange therefor;
(ii) all shares of Common Stock of the Merger Sub (the "Merger Sub Common Stock"), that are owed directly or indirectly by the Merger Sub or any subsidiary of the Merger Sub shall be canceled without consideration, and no securities of Parent or other consideration shall be delivered in part at any time exchange therefor;
(iii) each of the issued and from time to timeoutstanding shares of Parent shall remain outstanding as one validly issued, after fully paid and nonassessable share of the Original Issue Date capital stock of Parent;
(subject iv) each share of Company Common Stock issued and outstanding immediately prior to the limitations on conversion set forth Effective Time (other than shares, if any, held by persons who have demanded and perfected dissenters’ rights for such shares in Section 4(a)(iiaccordance with the Corporations Code of the State of California and who, as of the Effective Time, have not effectively withdrawn or lost such dissenters’ rights, referred to hereinafter as “Dissenting Shares”, and those shares being cancelled pursuant to clause (i) hereof). The above) shall be converted automatically into the right to receive,
(1) a number of shares (rounded down to the nearest whole share) of the common stock of Parent ("Parent Common Stock") equal to the quotient obtained from dividing (1) $1,245,609 by (2) $0.73, and then dividing such quotient by the total number of shares of Company Common Stock issuable upon issued and outstanding immediately prior to the Effective Time, plus,
(2) if the Surviving Corporation produces at least $800,000 of net profit by the first anniversary of the Effective Time, a conversion hereunder shall be determined by adding number of additional shares (rounded down to the sum of (inearest whole share) equal to the quotient obtained by from dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained $300,000 by dividing .12 by 360 and (2) the number average closing price of days for which such principal amount was outstanding, divided by a share of Parent Common Stock (II) the Conversion Price as reported on the Conversion Date, provided, that if Over-the-Counter Bulletin Board (the Company shall have timely elected to pay "OTCBB") for the interest due on a Conversion Date in cash pursuant to five (5) trading days immediately preceding the terms hereof, subsection (ii) shall not be used in the calculation date of the Surviving Corporation's determination of its net profit) and then dividing such quotient by the total number of shares of Company Common Stock issuable upon a conversion hereunder.issued and outstanding immediately prior to the Effective Time, plus
(B3) Notwithstanding anything if the Surviving Corporation produces at least $1,000,000 of net profit by the first anniversary of the Effective Time, a number of additional shares (rounded down to the contrary contained herein, if on any Conversion Date:
nearest whole share) equal to the quotient obtained from dividing (1) $200,000 by (2) the average closing price of a share of Parent Common Stock (as reported on the OTCBB for the five (5) trading days immediately preceding the date of the Surviving Corporation's determination of its net profit) and then dividing such quotient by the total number of shares of Company Common Stock issued and outstanding immediately prior to the Effective Time, plus
(4) if the Surviving Corporation produces at least $2,400,000 of additional net profit by the time authorizedsecond anniversary of the Effective Time, unissued and unreserved for all purposes, or held as treasury stock, is insufficient a number of additional shares (rounded down to pay interest hereunder in shares of Common Stock;
the nearest whole share) equal to the quotient obtained from dividing (1) $300,000 by (2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act average closing price of a share of Parent Common Stock (as defined in Section 6);
reported on the OTCBB for the five (35) trading days immediately preceding the date of the Surviving Corporation's determination of its net profit) and then dividing such quotient by the total number of shares of Company Common Stock is not listed or quoted for trading on issued and outstanding immediately prior to the OTC or on a Subsequent Market;
(4) Effective Time plus $300,000 in cash divided by the total number of shares of Company has failed Common Stock issued and outstanding immediately prior to timely satisfy its conversion obligations hereunder; orthe Effective Time, plus
(5) if the issuance Surviving Corporation produces at least $3,000,000 of such additional net profit by the second anniversary of the Effective Time, a number of additional shares of Common Stock would result in a violation of Sections 4(a)(ii), then, (rounded down to the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash nearest whole share) equal to the product of quotient obtained from dividing (a1) $200,000 by (2) the outstanding principal amount average closing price of the Debentures to be converted on such Conversion Date and (b) the product a share of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Parent Common Stock at (as reported on the option of OTCBB for the Holder, in whole or in part at any time and from time to time, after the Original Issue Date five (subject to the limitations on conversion set forth in Section 4(a)(ii5) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and trading days immediately preceding the date of the Surviving Corporation's determination of its net profit) and then dividing such conversions. In quotient by the event total number of any dispute or discrepancyshares of Company Common Stock issued and outstanding immediately prior to the Effective Time, plus $200,000 in cash divided by the records total number of shares of Company Common Stock issued and outstanding immediately prior to the Holder shall be controlling and determinative in the absence of manifest errorEffective Time.
Appears in 1 contract
Sources: Merger Agreement (Commerce Planet)
Conversion. (Aa) This Debenture Subject to and upon compliance with the provisions of the Fiscal Agency Agreement, a holder of Securities is entitled, at its option, at any time on or after the date that is the latest of (i) the Exchange Date, (ii) March 15, 1996 and (iii) the date of the effectiveness of the Registration Statement to be filed by the Company under the Securities Act relating to the Common Stock issuable upon conversion of the Restricted Securities (the _Registration Date_) and on or before the close of business on January 1, 2003, or in the case of a Security or portion thereof that is called for redemption by the Company, or the holder thereof elects to have such Security or portion thereof redeemed by the Company pursuant to Section 3(d) hereof, then in respect of such Security or such portion thereof until and including, but (unless the Company defaults in making the payment due upon redemption) not after, the close of business on the 15th day next preceding the date fixed for redemption (or if such date is not a business day, as described in Section 11 hereof in New York City, then the next succeeding business day), or in the case of a Security or portion thereof that the holder elects to have redeemed by the Company pursuant to Section 3(e) hereof, then in respect of such Security or portion thereof until and including, but (unless the Company defaults in making the payment due upon redemption) not after, the close of business on the date the holder makes such election, to convert such Security (or any portion of the principal amount thereof which is U.S. $1,000 or an integral multiple thereof), at the principal PAGE amount thereof, or of such portion, into fully paid and nonassessable shares ("Conversion Shares") (calculated as to each conversion to the nearest 1/1000 of a share) of common stock, par value $1.00 per share of the Company ("Common Stock_), at a Conversion Price equal to U.S. $56.70 aggregate principal amount of Securities for each Conversion Share (the "Conversion Price") (or at the current adjusted Conversion Price if an adjustment has been made as provided herein) by surrender of the Security, or in the case of a Security submitted for redemption pursuant to Section 3(d) or Section 3(e) hereof, satisfactory evidence of such submission, together with (i) if a Bearer Security, all unmatured coupons and any matured coupons in default appertaining thereto, and if a Registered Security (if so required by the Company or the Fiscal Agent), instruments of transfer in form satisfactory to the Company and the Fiscal Agent, duly executed by the registered holder or by his duly authorized attorney, and (ii) the conversion notice hereon duly executed (x) at the principal corporate trust office of the Fiscal Agent, or at such other office or agency of the Company as may be designated by it for such purpose in New York City, or (y) subject to any laws or regulations applicable thereto and subject to the right of the Company to terminate the appointment of any such conversion agency, at Chemical Bank, Chemical Bank House, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, and if the Securities are listed on the Luxembourg Stock Exchange and so long as listed thereon, Banque Internationale a Luxembourg, S.A., ▇▇, ▇▇▇▇▇ ▇'▇▇▇▇, L-1470 Luxembourg, or at such other offices or agencies as the Company may designate.
(b) In the case of a conversion after the close of business on a Record Date next preceding any interest payment date and before the opening of business on such interest payment date, the holder of record of a Registered Security at such Record Date is to receive an installment of interest on the interest payment date. No payment or adjustment shall be convertible into made upon any conversion for dividends on the Common Stock delivered on conversion. Except as set forth in the first sentence of this subsection (b), accrued interest from the immediately preceding interest payment date until the date of conversion (together with any Additional Amounts, if any, thereon) will be paid to the holder within five business days after presentment for conversion on account of any interest accrued on the Securities surrendered for conversion, except that interest on Registered Securities surrendered for conversion after the close of business on a Record Date and before the opening of business on the next succeeding interest payment date shall be paid in an amount equal to the interest payable on such interest payment date on the principal amount being surrendered for conversion. No fractions of shares or scrip representing fractions of shares will be issued or delivered on conversion, but instead of any fractional interest the Company shall pay a cash adjustment as provided in the Fiscal Agency Agreement. Such conversion shall be so affected by the Company, except payment of accrued interest PAGE (together with Additional Amounts, if any, thereon) which will be paid by the Paying Agent.
(i) In case at any time the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in shares of Common Stock Stock, the Conversion Price in effect at the option opening of business on the Holder, in whole day following the date fixed for the determination of stockholders entitled to receive such dividend or in part at any time and from time to time, after other distribution shall be reduced so that the Original Issue Date (subject to same shall equal the limitations on conversion set forth in Section 4(a)(ii) hereof). The price determined by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock issuable outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares of Common Stock constituting such dividend or other distribution, such adjustment to become effective immediately after the opening of business on the day following the date fixed for such determination.
(ii) In the case at any time the Company shall (A) subdivide its outstanding shares of Common Stock, (B) combine its outstanding shares of Common Stock into a smaller number of shares, or (C) issue by reclassification of its shares of Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation) any shares of capital stock, the Conversion Price in effect at the effective date of such subdivision, combination or reclassification shall be proportionately adjusted so that the holder of any Security surrendered for conversion after such time shall be entitled to receive the aggregate number and kind of shares which, if such Security had been converted immediately prior to such time, the holder would have owned upon such conversion and been entitled to receive upon such subdivision, combination or reclassification. Such adjustment shall become effective immediately after the effectiveness of such subdivision, combination or reclassification. Such adjustment shall be made successively whenever any event listed above shall occur.
(iii) In case at any time the Company shall fix a conversion hereunder record date for the issuance of rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase Common Stock at a price per share less than the current market price per share of Common Stock (determined as provided in paragraph (v) of this subsection (c)) on such record date, the Conversion Price in effect at the opening of business on the day following such record date shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares so offered for subscription or purchase would purchase at such current market price per share of Common Stock and the PAGE denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following such record date. Such reduction shall be made successively whenever such a record date is fixed; and in the event that such rights or warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such record date had not been fixed.
(iv) In case at any time the Company shall fix a record date for the making of a distribution, by dividend or otherwise, to all holders of its shares if Common Stock, of evidences of its indebtedness or assets (including securities, but excluding any dividend or distribution referred to in paragraph (i) of this subsection (c), any rights or warrants referred to in paragraph (iii) of this subsection (c), and any dividend or distribution paid in cash out of the retained earnings of the Company), then in each such case the Conversion Price in effect after such record date shall be determined by adding multiplying the sum Conversion Price in effect immediately prior to such record date by a fraction, of which numerator shall be the total number of outstanding shares of Common Stock multiplied by the current market price per share of Common Stock (determined as provided in paragraph (v) of this subsection (c)) on such record date, less the fair market value (as determined by the Board of Directors of the Company, whose determination shall be conclusive and described in a statement filed with the Fiscal Agent) of the portion of the assets or evidences of indebtedness so to be distributed, and of which denominator shall be the total number of outstanding shares of Common Stock multiplied by such current market price per share of Common Stock. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that such distribution is not so made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such record date has not been fixed.
(v) For the purpose of any computation under paragraphs (iii) and (iv) of this subsection (c), the current market price per share of Common Stock on any date shall be deemed to be the average of the Closing Prices (as defined below) for the 15 consecutive trading days upon which the principal trading market for the Common Stock is open and selected by the Company commencing not less than 20 nor more than 30 days before the day in question. The "Closing Price" for any day shall be the last reported sales prices regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not or admitted to trading on such exchange, on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, the closing sale price quoted PAGE on the Nasdaq National Market, or if not so quoted, as determined by the Company.
(vi) The Company may make such adjustments in the Conversion Price, in addition to those required by paragraphs (i), (ii) and, (iii) selected by the Company of this section, as it considers to be advisable in order that any event treated for United States Federal income tax purposes as a dividend of stock or stock rights shall not be taxable to the recipients.
(vii) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least U.S. $.25 in such Conversion Price; provided, however, that any adjustment which by reason of this paragraph (vii) is not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this subsection (c) shall be made to the nearest cent or to the nearest 1/1000 of a share, as the case may be.
(viii) In the event that the Company shall distribute rights pro rata to holders of Common Stock pursuant to the Rights Agreement, dated as of May 4, 1988, between the Company and the First National Bank of Boston, as Rights Agent, or any similar plan (_Rights_) the Company shall make proper provision so that each holder of a Security who converts such Security (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the Conversion Shares, a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the quotient obtained by dividing date for the distribution to the holders of Rights of separate certificates evidencing such Rights (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein_Distribution Date_), the same number of Rights to which a holder of a number of shares of Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the amount equal to (I) Distribution Date, the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the same number of days for Rights to which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation holder of the number of shares of Common Stock issuable into which the principal amount of the Security so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights; provided, however, that if after the Distribution Date with respect to such Rights converting Holders of Securities are not entitled to receive the Rights that would otherwise be attributable (but for the date of conversion) to their respective Conversion Shares or such Rights are not issued to them upon conversion for any reason, then adjustment of the Conversion Price shall be made under paragraph (iii) and this subsection (c), except the Distribution Date with respect to such Rights shall be substituted as _the record date for the issuance of rights_; provided, further, that if such an adjustment is made and such Rights are later redeemed, invalidated or terminated, PAGE then a conversion hereundercorresponding reversing adjustment of the Conversion Price shall be made to the Conversion Price, on an equitable basis, to take account of such event.
(Bd) Notwithstanding anything to Whenever the contrary contained hereinConversion Price is adjusted and in the event of certain other corporate actions, if on any Conversion Date:as herein provided, the Company shall give notice, all as provided in the Fiscal Agency Agreement.
(1e) The Company shall file, as soon as practicable following the number Closing Date, a shelf registration statement with the United States Securities and Exchange Commission covering the resale of the shares of Common Stock at issuable upon conversion of the time authorized, unissued Restricted Securities (_Registrable Securities_); provided that any holder of any Restricted Securities or Registrable Securities shall not sell any shares pursuant to such registration statement unless and unreserved until it provides to the Company such information as the Company may reasonably request for all purposesuse in connection with the identification of such holder as a selling stockholder in such registration statement, or held any prospectus included therein, and no such sale shall be made by such holder pursuant to such registration statement unless and until such information is included by the Company in such registration statement or prospectus. The Company shall in good faith use its best efforts and at its cost to cause such registration statement to be declared effective as treasury stockpromptly as practicable thereafter and to include in such registration statement the information provided by a holder as a selling stockholder and shall notify the Fiscal Agent of the effectiveness thereof and agrees to use its best efforts to (i) cause all registrations with, is insufficient and to pay interest hereunder obtain any approvals by, any governmental authority under any Federal or state law of the United States that may be required in shares connection with the conversion of the Securities into Common Stock;
Stock and the resale thereof, (2ii) maintain the effectiveness of such registrations until the earlier of (a) three years from the date of the Fiscal Agency Agreement, or (b) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to date that Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) is available for the Common Stock is not listed or quoted for trading on resale of the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount issuable upon conversion of the Debentures to be converted on such Conversion Date and Restricted Securities (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.other sec
Appears in 1 contract
Conversion. Buyer shall have the right to convert the Preferred Shares into Common Shares as follows:
(Ai) This Debenture The Preferred Shares shall become convertible, without the payment of any additional consideration therefor, over a 180-day period from the date hereof in accordance with the following schedule: No. of Shares Date on Which First Convertible ------------- ------------------------------- 20% (the "First Installment") December 14, 1996 40% (the "Second Installment") January 13, 1997 60% (the "Third Installment") February 12, 1997 80% (the "Fourth Installment") March 14, 1997 100% (the "Fifth Installment") April 13, 1997
(ii) The Preferred Shares shall be convertible into shares that number of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be Shares as is determined by adding dividing the sum of (iA) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted Purchase Price and (yB) any dividends on the Preferred Shares which are accrued but unpaid as of the date of conversion, by the Conversion Price (determined as defined herein), and (iihereinafter provided) in effect on the amount date of conversion. The "Conversion Price" shall be equal to eighty-five and one-half percent (I85.5%) of the product average closing bid price of a Common Share on the American Stock Exchange (x) or, in the outstanding principal amount of this Debenture to be converted and (y) event that such security is not traded on the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for American Stock Exchange, such other national or regional securities exchange or automated quotation system upon which such principal amount was outstandingsecurity is listed and principally traded or, divided if no such price is available, the average per share market value of such security as determined by a nationally recognized investment banking firm or other nationally recognized financial adviser retained by Seller for such purpose) during the five (II5) trading days immediately preceding the date the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act Notice (as defined in Section 6);
(35(iii) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(iihereof), thenis received by Seller (such price or market value, the Company may not pay interest in kind "Closing Price"); PROVIDED, HOWEVER, that if the Conversion Price is equal to or greater than $20.00, then the Conversion Price shall be $20.00 and must pay interest in cash by deliveringif the Conversion Price is equal to or less than $12.00, within three Trading Days of each applicable then the Conversion Date, an amount in cash Price shall be equal to the product of (a) Closing Price; PROVIDED, FURTHER, that whenever the outstanding principal amount of Conversion Price is less than $8.75, then the Debentures Conversion Price shall be deemed to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding$8.75.
(Ciii) This Debenture Before Buyer shall be convertible entitled to convert any Preferred Shares into shares of Common Stock Shares, Buyer shall surrender the certificate or certificates therefor, duly endorsed, at the option office of Seller or of any transfer agent for the HolderPreferred Shares, in whole or in part at any time and from time to timeshall give written notice, after which may be provided by facsimile (the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"), to Seller at such office that Buyer elects to convert the same and shall state therein the name or names, including of any of its nominees, in which Buyer wishes the certificate or certificates for Common Shares to be issued, together with the applicable federal taxpayer identification number, if any. The Such notice shall specify which Installment or Installments (as defined in Section 5(i) hereof, or portions thereof, are to be converted. Seller shall, within five (5) business days after Seller's receipt of the Conversion Notice shall set forth (the remaining principal amount "Deadline"), provided that Seller has received the certificate or certificates therefor, duly endorsed, at the office of this Debenture and all accrued and unpaid interest thereon subsequent Seller or of any transfer agent for the Preferred Shares prior to the Deadline, issue and deliver at such office to Buyer, or to its nominee or nominees, a certificate or certificates for the number of Common Shares to which Buyer shall be entitled, together with a certificate or certificates representing any remaining Preferred Shares which have not yet been converted. Upon the conversion of any Preferred Shares, such shares shall be restored to the status of authorized but unissued shares and may be reissued by Seller at issue. The any time.
(iv) In the event of (A) any declaration by Seller of a record date for its common stock for the purpose of determining the holders thereof who are entitled to receive any dividend (other than a stock dividend payable in shares of common stock or a cash dividend which is the same as cash dividends paid in previous quarters) or other distribution, or (B) any capital reorganization of Seller, any reclassification or recapitalization of the capital stock of Seller, any merger or consolidation of Seller, and any transfer of all or substantially all of the assets of Seller to any other corporation, or any other entity or person, or any voluntary or involuntary dissolution, liquidation or winding up of Seller, Seller shall mail to Buyer at least 20 days prior to the record date specified therein, a notice specifying (1) the date on which any such record is to be declared for the purpose of such dividend or distribution and a Conversion Notice description of such dividend or distribution, (2) the date on which any such reorganization, reclassification, transfer, consolidation, merger, dissolution, liquidation or winding up is delivered expected to become effective, and (3) the time, if any, that is to be fixed, as to when the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, holders of record of Common Shares (or other securities) shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal entitled to the applicable conversionexchange their Common Shares (or other securities) for securities or other property deliverable upon such reorganization, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversionsreclassification, transfer, consolidation, merger, dissolution, liquidation or winding up. In the event of any dispute merger or discrepancyconsolidation of Seller, or any transfer of all or substantially all of the assets of Seller to any other corporation, or any other entity or person, Buyer shall, notwithstanding anything herein to the contrary, from and after the consummation of such merger, consolidation or transfer, no longer be entitled to convert its Preferred Shares into Common Shares and shall be entitled to receive only that amount of consideration which Buyer would have received had it converted its Preferred Shares into Common Shares immediately prior to such merger, consolidation or transfer.
(v) Seller shall reserve and keep available out of its authorized but unissued Common Shares such number of Common Shares as shall from time to time be sufficient to effect conversion of the Preferred Shares.
(vi) Buyer hereby acknowledges and agrees that all certificates representing Preferred Shares, prior to the date which is forty (40) days after the issuance date of such Preferred Shares, shall bear the following legend: The shares of the Issuer represented by this certificate have been issued pursuant to Regulation S promulgated under the Securities Act of 1933, as amended ("Act"), and have not been registered under the Act. These shares may not be offered or sold within the United States or to or for the account of a "U.S. Person" (as that term is defined in Regulation S) until after the fortieth (40th) day following completion of the Regulation S offering of the Issuer pursuant to which these shares have been issued and only in compliance with the Act. The Issuer will notify the transfer agent of the date of completion of such offering.
(vii) Buyer further acknowledges and agrees that, prior to April 14, 1997, all certificates representing Preferred Shares shall contain a legend stating that the Preferred Shares represented by such certificates are convertible, and the specifics with respect thereto.
(viii) Seller shall use its best efforts to issue and deliver to Buyer a certificate or certificates for the number of Common Shares 'to which Buyer shall be entitled within seven (7) business days after Buyer has fulfilled all conditions required for conversion as set forth in this Agreement (the "Deadline"). Seller understands that a delay in the issuance of the Common Shares beyond the Deadline could result in economic loss to Buyer. As compensation to Buyer for such loss, and not as a penalty, Seller agrees to pay liquidated damages to Buyer for late issuance of Common Shares upon conversion in the amount of one percent (1%) of the requested conversion amount, per day, beginning on the eighth (8th) business day from the date of receipt by Seller of a duly executed notice of conversion, provided that the original Preferred Shares to be converted have been delivered to Seller within such time period, all in accordance with this Agreement, the records Preferred Shares and the requirements of Seller's transfer agent. Said liquidated damages shall accrue each day through the date the Common Shares are issued to Buyer upon conversion, and shall be paid by wire transfer to an account designated by Buyer upon the earlier to occur of (i) issuance of the Holder Shares to Buyer, or (ii) each monthly anniversary of the receipt by Seller of such Buyer's notice of conversion. Nothing herein shall waive Seller's obligations to deliver Common Shares upon conversion of the Preferred Shares or limit Buyer's right to pursue actual damages for Seller's failure to issue and deliver Common Shares to Buyer in accordance with the terms of this Agreement and the Preferred Shares.
(ix) Seller agrees that, in addition to any other remedies which may be controlling and determinative available to Buyer, in the absence event Seller fails for any reason to effect delivery to Buyer of manifest errorcertificates representing Common Shares by the Deadline, Buyer may revoke the notice of conversion by delivering a notice of such effect to Seller, whereupon Seller and Buyer shall each be restored to their respective positions immediately prior to delivery of such notice of conversion.
Appears in 1 contract
Sources: Offshore Convertible Securities Subscription Agreement (Selfcare Inc)
Conversion.
(Aa) This Debenture shall be convertible into shares If the Notice of Common Stock at Conversion is issued in the option timeframe required under the Construction Phase Financing Agreement and all conditions with respect thereto and with respect to the purchase of the HolderGovernmental Note are satisfied, Conversion will occur on the Conversion Date indicated in whole such Notice of Conversion. If the Notice of Conversion is not so issued or in part at any time all conditions with respect thereto and from time to time, after the Original Issue Date (subject with respect to the limitations funding of the Funding Loan are not so satisfied, then Conversion will not occur and neither the ▇▇▇▇▇▇▇ Mac Seller/Servicer nor ▇▇▇▇▇▇▇ ▇▇▇ will have any obligations with respect to the purchase of the Governmental Note or otherwise with respect to the Loan or the Project.
(b) If the Conditions to Conversion are satisfied on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding or before the sum of Forward Commitment Maturity Date, Conversion will occur on the Conversion Date and, on such Conversion Date, (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture Bonds shall be subject to be converted and (y) the Conversion Price (as defined herein)mandatory tender in accordance with Section 3.01 hereof, and (ii) the amount equal to purchase price of the Bonds shall be paid with amounts on deposit in the Collateral Fund (Iand/or other Eligible Funds hereunder), (iii) a portion of the product of (x) the outstanding principal amount of the Bonds shall be cancelled such that the principal amount outstanding equals the Actual Project Loan Amount (as determined by the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇/Servicer at such time), (iv) the Bonds shall be removed from the Book-Entry System and converted into a physical Governmental Note (in the form attached to the Funding Loan Agreement) which shall be purchased by the ▇▇▇▇▇▇▇ ▇▇▇ Seller/Servicer, (v) the Funding Loan Agreement attached hereto as Appendix C and the Project Loan Agreement attached hereto as Appendix D shall be delivered by the respective parties and become effective and shall supersede this Debenture Indenture and the Loan Agreement, respectively, (vi) the proceeds of the ▇▇▇▇▇▇▇ ▇▇▇ Seller/Servicer Purchase Price shall be delivered to the Trustee for deposit into the Permanent Loan Purchase Fund, and certain funds of the Borrower shall be converted delivered to the Title Company, (vii) the Mortgage Loan shall be paid in part with amounts on deposit in the Collateral Fund (pursuant to Section 4.08(c) hereof) and in part with amounts held by the Title Company, as applicable and (yviii) all security related to the product Mortgage Loan shall be released or assigned to the ▇▇▇▇▇▇▇ ▇▇▇ Seller/Servicer. If the Conditions to Conversion are not satisfied on or before the Forward Commitment Maturity Date, the Loan will not convert from the Construction Phase to the Permanent Phase, and neither the ▇▇▇▇▇▇▇ ▇▇▇ Seller/Servicer nor ▇▇▇▇▇▇▇ ▇▇▇ will have any obligation with respect to the purchase of the Governmental Note.
(1c) Provided all Conditions to Conversion are satisfied, the quotient obtained by dividing .12 by 360 Issuer and (2) Trustee agree to execute and deliver the number of days for which such principal amount was outstandingFunding Loan Agreement, divided by (II) the Conversion Price Governmental Note and Project Loan Agreement on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant subject to the terms hereofcompletion of the attached forms, including filling in the Conversion Date, the Actual Project Loan Amount and attaching the final amortization schedule in accordance with subsection (iid) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderbelow.
(Bd) Notwithstanding anything The Governmental Note shall mature on the Maturity Date, subject to earlier prepayment as provided in the Funding Loan Agreement. The unpaid principal balance of the Governmental Note shall be paid on the dates and in the amounts set forth on the initial Funding Loan Amortization Schedule provided on the Closing Date and attached as Schedule 1 to the contrary contained hereinGovernmental Note (the “Funding Loan Amortization Schedule”) if the Conversion Date occurs on or prior to the initial Forward Commitment Maturity Date. If the Forward Commitment Maturity Date is extended by ▇▇▇▇▇▇▇ ▇▇▇ in accordance with the ▇▇▇▇▇▇▇ ▇▇▇ Commitment and the Construction Phase Financing Agreement, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated first principal payment date under the Securities Act Funding Loan Amortization Schedule shall automatically be extended to the first day of the month immediately succeeding the Conversion Date (as defined with the succeeding principal installments remaining consistent with the original schedule but for them occurring on later dates). Additionally, in Section 6);
(3) the Common Stock is not listed or quoted for trading event the outstanding amount of the Funding Loan on the OTC or Conversion Date is less than the starting principal amount set forth in the initial Funding Loan Amortization Schedule, a new Funding Loan Amortization Schedule will be generated on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of Conversion Date at such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the lesser outstanding principal amount of based on the Debentures parameters set forth in the ▇▇▇▇▇▇▇ Mac Commitment. In the event the initial Funding Loan Amortization Schedule is modified in accordance with this Section 2.12(d), a replacement Funding Loan Amortization Schedule will be provided by the ▇▇▇▇▇▇▇ ▇▇▇ Seller/Servicer which will be attached to be converted the Governmental Note on such the Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingDate.
(Ce) This Debenture In addition to the Conditions to Conversion set forth in the ▇▇▇▇▇▇▇ ▇▇▇ Commitment and the Construction Phase Financing Agreement, Conversion shall be convertible into shares of Common Stock at conditioned upon the option delivery of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion items set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records 2.10 of the Holder shall be controlling and determinative in the absence of manifest errorFunding Loan Agreement.
Appears in 1 contract
Sources: Trust Indenture
Conversion. (Aa) This Debenture shall be convertible into shares of Common Stock at At the option of the Holder, this Note shall be convertible into a number of shares of common stock, no par value per share, of the Maker ("Common ------ Stock"), calculated by dividing the principal amount of this Note by $10.00 (the ----- "Conversion Price"), as such Conversion Price is subject to adjustment as set ---------------- forth in whole subsections (d) through (f) below. In addition, this Note shall automatically convert into Common Stock, calculated according to the provisions of this subsection (a), upon the affirmative vote of the holders of an aggregate principal amount representing a majority of the then outstanding principal amount of all Notes.
(b) In connection with any conversion of this Note, all interest accrued and compounded pursuant to Section 1(a)(ii) of this Note, or paid ---------------- through the issuance of additional Notes pursuant to Section 1(a)(i) of this ----------------------- Note shall, at the option of the Maker, (1) be convertible into Common Stock ---- based upon the terms of this Section 3, (2) be paid in part cash or (3) be paid by --------- the issuance of an additional promissory note or notes of equal ranking to this Note and on the same terms and conditions provided for herein, such note to be issued in a principal amount that corresponds with the amount of the interest payment that would otherwise be due upon conversion of this Note (the "Additional Note"); provided, however, that if at the time of the requested ---------------- -------- ------- conversion of this Note, the Maker is unable to issue Common Stock to the Holder, pay such interest in cash or issue an Additional Note because the terms of any time agreement to which the Maker or its parent is a party, including the Credit Agreement and from time to the Subordination Agreement, prohibits all of the same, then this Note shall not be converted into Common Stock at such time, .
(c) As soon as practicable after the Original Issue Date (subject conversion of this Note, the Maker at its expense will cause to be issued in the name of and delivered to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder, a certificate or certificates for the number of shares of Common Stock issuable upon a conversion hereunder to which the Holder shall be determined entitled on such conversion. No fractional shares will be issued on conversion of the Note. If on conversion of the Note a fraction of a share results, the Company will pay the cash value of that fractional share based on the Conversion Price then in effect.
(d) In the event the outstanding shares of Common Stock shall, after date hereof, be further subdivided (split), or combined (reverse split), by adding reclassification or otherwise, or in the sum event of any dividend or other distribution payable on the Common Stock in shares of Common Stock, the Conversion Price in effect immediately prior to such subdivision, combination, dividend or other distribution shall, concurrently with the effectiveness of such subdivision, combination or dividend or other distribution, be proportionately adjusted.
(e) If the Maker at any time shall issue additional shares of Common Stock, by reason of the declaration or payment of a dividend or other distribution on the Common Stock payable in additional shares of Common Stock, then and in each such event, the Conversion Price then in effect shall be decreased as of the time of such issuance or, if such a record date shall have been fixed, as of the close of business on such record date, by multiplying the Conversion Price then in effect by a fraction:
(i) the quotient obtained by dividing (x) numerator of which shall be the total number of shares of Common Stock issued and outstanding principal amount immediately prior to the time of this Debenture to be converted and (y) such issuance or the Conversion Price (as defined herein)close of business on such record date, and and
(ii) the amount equal to (I) denominator of which shall be the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the total number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant shares of Common Stock issued and outstanding immediately prior to the terms hereof, subsection (ii) shall not be used in time of such issuance or the calculation close of business on such record date plus the number of shares of Common Stock issuable upon a conversion hereunderin payment of such dividend or distribution; provided, however, that if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Conversion Price shall be recomputed accordingly as of the close of business on such record date and thereafter the Conversion Price shall be adjusted pursuant to this subsection as of the time of actual payment of such dividends or distributions.
(Bi) Notwithstanding anything If at any time or from time to time after the contrary contained hereindate hereof, the Maker issues or sells, or is deemed by the express provisions of this subparagraph (f) to have issued or sold, Additional Shares of Common Stock (as defined in clause (v) below), other than upon a subdivision or combination of, or as a dividend or other distribution on, the Common Stock as provided in subparagraph (e) above, for an Effective Price (as defined in clause (v) below) less than the then existing Conversion Price (or, if an adjusted Conversion Price shall be in effect by reason of a previous adjustment, then less than such adjusted Conversion Price), the then-existing Conversion Price shall be reduced, as of the opening of business on any the date of such issue or sale, to a price determined by multiplying the then-existing Conversion Date:
Price by a fraction (1i) the numerator of which shall be (A) the number of shares of Common Stock outstanding at the close of business on the day immediately preceding the date of such issue or sale, plus (B) the number of shares of Common Stock that the aggregate consideration received (or by the express provisions hereof deemed to have been received) by the Maker for the total number of Additional Shares of Common Stock so issued would purchase at the Conversion Price in effect immediately prior to such issuance, and (ii) the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such issuance plus the number of Additional Shares of Common Stock so issued; provided, however, that for the purposes of this clause (i), all shares of Common Stock then issuable upon conversion or exercise of then outstanding rights or options to acquire Common Stock or other stocks or securities convertible into Common Stock shall be deemed to be outstanding.
(ii) For the purpose of making any adjustment required under this subparagraph (f), the consideration received by the Maker for any issue or sale of securities shall (A) to the extent it consists of cash be computed at the gross amount of cash received by the Maker before deducting any expenses payable by the Maker and any underwriting or similar commissions, compensation, or concessions paid or allowed by the Maker in connection with such issue or sale, (B) to the extent it consists of property, be computed as determined in good faith by the Board of Directors of the Maker (the "Board"), and (C) if ----- Additional Shares of Common Stock, securities convertible into Additional Shares of Common Stock ("Convertible Securities") or rights or options to purchase ---------------------- either Additional Shares of Common Stock or Convertible Securities are issued or sold together with other stock or securities or other assets of the Maker for a consideration which covers both, be computed as the portion of the consideration so received that may be reasonably determined in good faith by the Board to be allocable to such Additional Shares of Common Stock, Convertible Securities or rights or options, as the case may be.
(iii) For the purpose of the adjustment required under this subparagraph (g), if the Maker issues or sells any rights or options to purchase Common Stock or any Convertible Securities and if the Effective Price of the Additional Shares of Common Stock underlying such rights or options or Convertible Securities is less than the then applicable Conversion Price, then the Maker shall be deemed to have issued at the time authorized, unissued and unreserved for all purposes, of the issuance of such rights or held as treasury stock, is insufficient to pay interest hereunder in shares options or Convertible Securities the maximum number of Additional Shares of Common Stock;
(2) the Underlying Shares Stock issuable upon exercise or conversion thereof and to have received as consideration for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversiontotal amount of the consideration, which if any, received by the Maker for the issuance of such rights or options or Convertible Securities, plus, in the case of such rights or options, the minimum amount of consideration, if any, payable to the Maker upon the exercise of such rights or options, plus, in the case of Convertible Securities, the minimum amounts of consideration, if any, payable to the Maker (other than by cancellation of liabilities or obligations evidenced by such Convertible Securities) upon the conversion thereof. No further adjustment of the Conversion Price, adjusted upon the issuance of such rights, options or Convertible Securities, shall be made as a result of the actual issuance of Additional Shares of Common Stock on the exercise of any such rights, options or the conversion of any such Convertible Securities. If any such rights or options or the conversion privilege represented by any such Convertible Securities shall expire without having been exercised, the Conversion Price, adjusted upon the issuance of such rights, options or Convertible Securities shall be readjusted to the applicable Conversion Price that would have been in effect had an adjustment been made on the basis that the only Additional Shares of Common Stock so issued were the Additional Shares of Common Stock, if any, actually issued or sold on the exercise of such rights or options or rights of conversion of such Convertible Securities, and such Additional Shares of Common Stock, if any, were issued or sold for the consideration actually received by the Maker upon such exercise, plus the consideration, if any, actually received by the Maker for the granting of all such rights or options, whether or not exercised, plus the consideration received for issuing or selling the Convertible Securities actually converted, plus the consideration, if any, actually received by the Maker (other than by cancellation of liabilities or obligations evidenced by notations made in such Convertible Securities) on the conversion of such Convertible Securities.
(iv) For the purpose of the adjustment required under this subparagraph (g), if the Maker issues or sells any rights or options for the purchase of Convertible Securities and if the Effective Price of the Additional Shares of Common Stock underlying such Convertible Securities is less than the then-applicable Conversion Price, the Maker shall be deemed to have issued at the time of the issuance of such rights or options the maximum number of Additional Shares of Common Stock issuable upon conversion of the total amount of Convertible Securities covered by such rights or options and to have received as consideration for the issuance of such Additional Shares of Common Stock an amount equal to the amount of consideration, if any, received by the Maker for the issuance of such rights or options, plus the minimum amounts of consideration, if any, payable to the Maker upon the exercise of such rights or options and plus the minimum amount of consideration, if any, payable to the Maker (other than by cancellation of liabilities or obligations evidenced by such Convertible Securities) upon the conversion of such Convertible Securities. No further adjustment of the Conversion NoticePrice, adjusted upon the issuance of such rights or options, shall be made as a result of the actual issuance of the Convertible Securities upon the exercise of such rights or options or upon the actual issuance of Additional Shares of Common Stock upon the conversion of such Convertible Securities. The Holder and provisions of clause (iii) above for the Company readjustment of the Conversion Price upon the expiration of rights or options or the rights of conversion of Convertible Securities shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancyapply, the records of necessary changes having been made, to the Holder shall be controlling rights, options and determinative Convertible Securities referred to in the absence of manifest errorthis clause (iv).
Appears in 1 contract
Sources: Senior Subordinated Convertible Promissory Note (Hudson Respiratory Care Inc)
Conversion. (Aa) This Debenture Conversion at Option of Holder. The holders of the Series B Preferred Stock shall be convertible into have the option to convert up to (i) twenty-five percent (25%) of the aggregate number of shares of Common Series B Preferred Stock at the option of the Holder, in whole or in part at any time and from time to time, time from and after the Original Issue Date 90th day following the Issuance Date, (subject to ii) fifty percent (50%) of the limitations on conversion set forth in Section 4(a)(ii) hereof). The aggregate number of shares of Series B Preferred Stock at any time and from time to time from and after the 120th day following the Issuance Date, (iii) seventy-five percent (75%) of the aggregate number of shares of Series B Preferred Stock at any time and from time to time from and after the 150th day following the Issuance Date and (iv) one hundred percent (100%) of the aggregate number of shares of Series B Preferred Stock at any time and from time to time from and after the 180th day following the Issuance Date into fully paid and nonassessable shares of Common Stock. Each share of Series B Preferred Stock may be converted at the office of the Conversion Agent or at such other additional office or offices, if any, as the Board of Directors may designate, by delivery of a Conversion Notice (which may be done by telephone line facsimile transmission), into such number of fully paid and nonassessable shares of Common Stock issuable upon (calculated as to each conversion to the nearest 1/100th of a conversion hereunder shall be share) determined by adding dividing (x) the sum of (i) $1,000 (subject to equitable adjustments for stock splits, stock dividends and combinations affecting the quotient obtained Series B Preferred Stock), (ii) accrued but unpaid dividends to the applicable Conversion Date on the share of Series B Preferred Stock being converted, and (iii) accrued but unpaid interest on the dividends on the share of Series B Preferred Stock being converted in arrears to the applicable Conversion Date at the rate provided in Section 4 (such sum, the "Conversion Amount") by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion lesser of (i) the Computed Price (as defined herein), and (ii) the amount equal Ceiling Price and having the terms and conditions provided in Section 8(c) hereof, in each case subject to adjustment as hereinafter provided (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the "Conversion Price on the Conversion Date, Rate"); provided, however, that if the Company in no event shall have timely elected any holder of shares of Series B Preferred Stock be entitled to pay the interest due on a Conversion Date convert any shares of Series B Preferred Stock in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation excess of the that number of shares of Common Series B Preferred Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to of which the contrary contained herein, if on any Conversion Date:
sum of (1) the number of shares of Common Stock at beneficially owned by such holder or any Aggregated Person of such holder (other than shares of Common Stock deemed beneficially owned through the time authorizedownership of unconverted shares of Series B Preferred Stock) and (2) the number of shares of Common Stock issuable upon the conversion of the number of shares of Series B Preferred Stock with respect to which the determination in this proviso is being made, unissued would result in beneficial ownership by such holder and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in Aggregated Persons of such holder of more than 4.9% of the outstanding shares of Common Stock;
(2) . For purposes of the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal proviso to the product of (aimmediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) the outstanding principal amount of the Debentures to be converted on such Conversion Date Exchange Act and Rule 13d-3 thereunder, except as otherwise provided in clause (b1) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject proviso to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Dateimmediately preceding sentence." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Sources: Subscription Agreement (Ride Inc)
Conversion. (A) This Debenture At the Effective Time of the Merger, each of the following transactions shall be convertible deemed to occur simultaneously:
(a) Each share of the Parent's common stock, $0.005 par value (the "Parent's Common Stock") issued and outstanding, immediately prior to the Effective Time of the Merger shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted into and become one twentieth (1/20) of a validly issued, fully paid and nonassessable share of the Surviving Corporation's common stock, par value $0.001 per share (the "Surviving Corporation's Common Stock").
(b) Each option to purchase shares of the Parent's Common Stock at outstanding immediately prior to the option Effective Time of the HolderMerger shall, in whole or in by virtue of the Merger and without any action on the part at any time and from time to timeof the holder thereof, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted into and (y) become an option to purchase, upon the Conversion Price (as defined herein)same terms and conditions, and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of the Surviving Corporation's Common Stock issuable upon a conversion hereunder.
Stock, which is one twentieth (B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(11/20) the number of shares of the Parent's Common Stock at that the time authorizedoptionee would have received had the optionee exercised such option in full immediately prior to the Effective Time of the Merger (whether or not such option was then exercisable) and the exercise price per share under each of said options shall be one twentieth (1/20) the exercise price per share thereunder immediately prior to the Effective Time of the Merger, unissued and unreserved for all purposes, or held as treasury stock, is insufficient unless otherwise provided in the instrument granting such option.
(c) Each warrant to pay interest hereunder in purchase shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Parent's Common Stock is not listed or quoted for trading outstanding immediately prior to the Effective Time of the Merger shall, by virtue of the Merger and without any action on the OTC or on part of the holder thereof, be converted into and become a Subsequent Market;
(4) warrant to purchase, upon the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) same terms and conditions, the issuance number of such shares of the Surviving Corporation's Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of which is one twentieth (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y1/20) the number of days for which shares of the Parent's Common Stock that the warrant holder would have received had the warrant holder exercised such principal amount warrant in full immediately prior to the Effective Time of the Merger (whether or not such warrant was outstandingthen exercisable) and the exercise price per share under each of said warrants shall be one twentieth (1/20) the exercise price per share thereunder immediately prior to the Effective Time of the Merger, unless otherwise provided in the instrument granting such warrant.
(Cd) This Debenture Each share of the Subsidiary's Common Stock issued and outstanding immediately prior to the Effective Time of the Merger and held by the Parent shall be convertible into shares of Common Stock at the option of the Holder, in whole canceled without any consideration being issued or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Datepaid therefor." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Conversion. (A) This Debenture Subject to and upon compliance with the provisions for adjustment set forth in, and upon compliance with the provisions of, this Section B.4. and following the approval of this Section B.4. by the holders of a majority of the Common Stock, each share of this Series shall be convertible into a number of fully paid and nonassessable shares of Common Stock at the option of the HolderStock, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion determined as set forth in Section 4(a)(ii) hereof). The below (said number of shares of Common Stock issuable upon a conversion hereunder (as adjusted from time to time pursuant to the provisions of Section B.4.) being hereinafter referred to as the "B Conversion Ratio"); provided, however, that the right to convert shall be determined terminate at the close of business on the fifth business day prior to the date fixed by adding the sum of Corporation for redemption pursuant to Section B.5.
(i) At any time during the Conversion Period and provided that at such time as the conversion right is exercised the Unistar Group has Net Income, in respect of the fiscal year immediately preceding the fiscal year in which the conversion is being made, equal to or exceeding $1,000,000, the B Conversion Ratio shall equal, for each share of Series B Preferred Stock, the quotient obtained by dividing of (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I1) the product of (xI) the outstanding principal amount excess of this Debenture to be converted such Net Income over $1,000,000 and (yII) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding.79, divided by (II2) the Conversion Price on the Conversion Date100,000, provided, however, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the maximum number of shares of Common Stock issuable upon into which a share of Series B Preferred Stock may be convertible shall be 83.75 ("Maximum B Number"); or (ii) At any time during the Conversion Period and provided that at such time as the conversion hereunder.
(B) Notwithstanding anything to right is exercised the contrary contained hereinsum, if on any Conversion calculated from the Effective Date:
, of (1) 100% of the number cumulative Net Revenues of the Unistar Group and (2) 25% of the cumulative Lottery Revenues, exceeds $50,000,000, the B Conversion Ratio shall equal 83.75 shares of Common Stock at for each share of Series B Preferred Stock; or (iii) At any time during the time authorized, unissued and unreserved for Conversion Period after the sale or transfer of a controlling interest in Unistar or UEI or the sale or assignment of substantially all purposes, of the business or held as treasury stock, is insufficient assets of Unistar or UEI to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock a third party that is not listed or quoted for trading on a wholly-owned Subsidiary of the OTC or on a Subsequent Market;
(4) Corporation, the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such B Conversion Ratio shall equal 83.75 shares of Common Stock would result in a violation for each share of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Series B Preferred Stock. b. Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingProcedure.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Sources: Merger Agreement (Executone Information Systems Inc)
Conversion. 2.1 At the closing of the Initial Public Offering, all principal and interest accrued on this Note shall automatically convert into a number of shares of Conversion Stock determined by dividing the aggregate dollar amount of the outstanding principal and interest on the Note by the applicable Conversion Price, without the need for any further action on the part of the Holder; provided, however, that the Holder shall not be entitled to receive the stock certificate representing the shares of Conversion Stock to be issued upon conversion of this Note until the original of this Note is surrendered to the Company.
2.2 In the event a Change of Control occurs before the closing of the Initial Public Offering, then the Holder shall have five (A5) This Debenture business days after it receives a written description of the consideration it would receive in return for Conversion Stock (a "Change in Control Notice") to provide the Company with a written election to receive repayment of the principal balance of this Note and accrued interest thereon in cash. If the Company has not received such written notice by the Holder electing cash repayment by the close of the fifth (5th) business day after the Holder's receipt of a Change of Control Notice, all principal and interest accrued on this Note shall be convertible automatically convert into shares of Common Conversion Stock at the option Conversion Price, without the need for any further action on the part of the Holder, effective upon the later of the close of business on the fifth (5th) business day after delivery of a Change of Control Notice or immediately prior to the consummation of such Change of Control. Notwithstanding the foregoing, that the Holder shall not be entitled to receive the stock certificate representing the shares of Conversion Stock to be issued upon conversion of this Note until the original of this Note is surrendered to the Company.
2.3 If on September 1, 2000 the Company has not closed an Initial Public Offering, then the Note shall no longer be convertible, in whole or in part at part, into Conversion Stock or any time and from time to time, after other security of the Original Issue Date (subject Company or any other successor corporation to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderCompany.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Sources: Convertible Note and Warrant Purchase Agreement (Lexar Media Inc)
Conversion. (A) This Debenture shall be convertible into shares of Common Stock at Effective upon the option consummation of the HolderAMT Investment, (a) Working Capital Borrowings in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding an aggregate principal amount of this Debenture to $7,000,000 shall be automatically converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date into Term Borrowings and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture Working Capital Commitments shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time ratably reduced by $7,000,000. Prior to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancyconversion, the records Borrower shall notify the Agent in writing of the Holder Working Capital Borrowing or Borrowings (or portions thereof) that are to be converted pursuant to the preceding sentence. The conversion of each such Borrowing (or portion thereof) shall be controlling allocated ratably to the Loans included in such Borrowing. If the aggregate principal amount of outstanding Working Capital Loans would be less than $7,000,000 on the date that such conversion is to be made pursuant to the first sentence of this Section, then the Borrower shall borrow additional Working Capital Loans so that there are not less than $7,000,000 in aggregate principal amount of Working Capital Loans outstanding at the time of such conversion. Notwithstanding the foregoing, no such conversion shall become effective until receipt by the Security Agent of an amendment to each mortgage, deed of trust, assignment of leases or similar instrument or document required by law or reasonably requested by the Security Agent (all in form and determinative substance reasonably satisfactory to the Required Banks) to be filed, registered or recorded in order to maintain in favor of the absence Security Agent (or a trustee on its behalf) for the benefit of manifest errorthe Banks a valid, legal and perfected first priority security interest in or lien on the real property (and improvements thereon) owned by the Borrower or any Specified Subsidiary and identified on Schedule 3.01(j) to the Credit Agreement, in each case duly executed and delivered by each mortgagor, grantor or pledgor thereunder.
(c) Section 5.09 of the Credit Agreement is hereby amended by deleting the words "clause (f), (l) or (n)" from the second sentence thereof and substituting the words "clause (f), (l), (n) or (o)".
Appears in 1 contract
Conversion. (A) This Debenture shall be convertible into shares of Common Stock at At the option Holder’s option, on the Maturity Date or immediately after the expiry of the Holdercure period contained in the Section 6.1(a), as applicable, in whole or in part at any time and from time to timelieu of cash payment, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company Holder shall have timely elected the right but not the obligation to pay convert the interest due on a Conversion Date in cash Obligations into either Ordinary Shares or Series A Convertible preference shares (“Series A Preference Shares”) pursuant to the terms hereof, subsection (ii) shall not be used in the calculation and conditions of the number Certificate of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained hereinDesignation, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A B (a "Conversion Notice"the “Certificate of Designation”). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless If the Holder is converting elects to convert the entire principal amount outstanding under this Debenture, Obligations the Holder is not shall be required to physically surrender this Debenture to issued (a) if Nasdaq Approval (as defined in the Company in order to effect conversions. Subject to Section 4(bCertificate of Designation) has been obtained, a number of Ordinary Shares of the Company, par value $0.0001 per share (“Ordinary Shares”), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have in the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an aggregate amount equal to the quotient (rounded down to the nearest whole share) obtained by dividing the dollar amount of the Obligations by the applicable conversionConversion Price or (b) if the Nasdaq Approval has been not been obtained, a number of Series A Preference Shares equal to one one-hundredth times the number of Ordinary Shares issuable pursuant to the preceding clause (a) which shall ultimately be evidenced by notations made convertible into such number of Ordinary Shares issuable pursuant to the preceding clause (a) subject to the Nasdaq Approval. For the avoidance of doubt, a hypothetical conversion scenario is provided in Schedule II attached hereto. For purposes of this Section 4, “Conversion Price” means the Conversion Notice. The Holder price per Ordinary Share equal to the product of 100% of the Relevant Price less 22.5%; provided that the Relevant Price and the Company resulting Conversion Price shall maintain records showing not be below $1.29 and $1.00, respectively; “Relevant Price” means the principal amount converted average Closing Bid Price of the Ordinary Shares during the thirty (30) trading days period ending on the trading day immediately preceding the Maturity Date provided that any calculation of the Relevant Price shall disregard the Closing Bid Price for any day on which the Ordinary Shares are not traded on the NASDAQ Stock Market LLC (“Nasdaq”); and “Closing Bid Price” for the date Ordinary Shares as of any date, means the last closing bid/trade price for such shares on Nasdaq as reported by Bloomberg or, if no such closing bid/trade price is reported for such shares by Bloomberg, the last such closing bid/trade price of such conversions. In shares that is reported by B▇▇▇▇▇▇▇▇, in each case adjusted as appropriate for any variations to the event of Issuer’s share capital (to the extent that any dispute or discrepancy, the records of the Holder shall be controlling and determinative such variation has not already been reflected in the absence of manifest errorsuch closing bid/trade price).
Appears in 1 contract
Conversion. (A) This Debenture shall be convertible Subject to the best price guarantees and anti-dilutive rights set forth below, the TFST hereby agrees to immediately convert all of its Class A Bonds into shares of Colmena's Common Stock at the option of the HolderStock, in whole or accordance with their terms, which Colmena hereby represents will result in part at any time and from time to time, after the Original Issue Date (subject issuance to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation TFST of the number of shares of Common Stock issuable upon Colmena's common stock set forth in Exhibit 2 (A) annexed hereto and made a part hereof, the conversion hereunderbeing effected without registration under the Securities Act or the Florida Act, based on the exemption from registration provided by Section 4(6) of the Securities Act and Section 517.061(11) of the Florida Act.
(B) Notwithstanding anything Subject to the contrary contained hereinbest price guarantees and anti-dilutive rights set forth below, if on any Conversion Date:
(1) the number of TFST hereby converts the Colmena Debt into shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Colmena Common Stock;
, at a conversion price of $0.01 per share, as set forth below on Exhibit 2 (2) B), the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold transaction being effected without volume restrictions pursuant to Rule 144(k) promulgated registration under the Securities Act (as defined in Section 6);
(3) or the Common Stock is not listed or quoted for trading Florida Act, based on the OTC or on a Subsequent Market;
(4exemption from registration provided by Section 4(6) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date Securities Act and (bSection 517.061(11) of the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingFlorida Act.
(C) This Debenture shall be convertible into shares of Common Stock at In consideration for the option agreement by the TFST to accelerated conversion of the Holder, in whole or in part at any time Class A Bonds and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date of the Colmena Debt to Colmena common stock, which will result in the issuance of a materially smaller quantity of Colmena common stock to the TFST than would have otherwise been issuable based on which current Colmena business plans, Colmena hereby irrevocably covenants and agrees, as a Conversion Notice is delivered is material inducement to the entry into this Agreement by the TFST, that all of the shares issuable to the TFST pursuant to the terms of this Agreement, including, without limitation, the shares to be issued in exchange for conversion of the Colmena Debt and to be issued on conversion of the Class A Bonds (the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(bCovered Shares"), each Conversion Notice, once givenwhether or not then still owned by the TFST, shall be irrevocable. Conversions hereunder shall have increased by the effect issuance of lowering additional shares of Colmena common stock to the outstanding principal amount TFST, to reflect the issuance of any common stock or common stock purchase rights at a price of less than $0.01 per share (in cash or in the net tangible book value in accordance with GAAP of any assets or services paid therefor) during the 730 days following the execution of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversionAgreement, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.as follows:
Appears in 1 contract
Sources: Conversion Agreement (Colmena Corp)
Conversion. (A) This Debenture shall The entire principal amount of this Note and accrued interest on this Note may be convertible into shares of Common Stock at the option converted, under discretion of the Holder, wholly or partially into shares of the Company’s equity securities (the “Equity Securities”) issued and sold at the close of the Company’s next equity financing in whole a single transaction or a series of related transactions yielding gross proceeds to the Company of at least $50,000,000.00 in part at any time and from time to timethe aggregate (excluding the conversion of the Note) (the “Next Equity Financing”) consummated prior to, on or after the Original Issue Date Maturity Date. Such conversion right shall expire if not exercised within three (subject to 3) months of the limitations closing of the Next Equity Financing. In the event that the lead investor in the Next Equity Financing is not a holder of Equity Securities of the Company on conversion set forth in Section 4(a)(ii) hereofthe date hereof or an affiliate thereof (a “Related Investor”). The , then the number of shares of Common Stock issuable Equity Securities to be issued upon a such conversion hereunder shall be determined by adding the sum of (i) equal to the quotient obtained by dividing (xi) the outstanding entire principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and Note plus accrued interest by (ii) 80% of the amount equal to (I) price per share of the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstandingEquity Securities, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant rounded to the terms hereofnearest whole share, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result Equity Securities upon such conversion shall be upon the terms and subject to the conditions applicable to the Next Equity Financing; provided, however, that in a violation of Sections 4(a)(ii), thenthe event such Next Equity Financing is consummated after the Maturity Date, the Company entire principal amount of, and accrued interest on, this Note may not pay interest in kind and must pay interest in cash be converted into such number of Equity Securities as is obtained under discretion of the Holder by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of dividing (ai) the outstanding entire principal amount of this Note plus accrued interest by (ii) 67% of the Debentures price per share of the Equity Securities, rounded to the nearest whole share, and the issuance of such shares of Equity Securities upon such conversion shall be upon the terms and subject to the conditions applicable to the Next Equity Financing. In the event that the lead investor in the Next Equity Financing is a Related Investor, then regardless of whether the Next Equity Financing is consummated before or after the Maturity Date, the number of shares of Equity Securities to be converted on issued upon such Conversion Date and (b) the product of (x) conversion shall be equal to the quotient obtained by dividing .12 by 360 and (y1) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining entire principal amount of this Debenture and all Note plus accrued and unpaid interest thereon subsequent by (2) 100% of the price per share of the Equity Securities, rounded to the nearest whole share, and the issuance of such shares of Equity Securities upon such conversion at issueshall be upon the terms and subject to the conditions applicable to the Next Equity Financing. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under Upon such conversion of this DebentureNote, the Holder is not be required hereby agrees to physically surrender this Debenture execute and deliver to the Company all transaction documents related to the Next Equity Financing, including a purchase agreement and other ancillary agreements, with customary representations and warranties and transfer restrictions (including a lock-up agreement in order to effect conversions. Subject to Section 4(bconnection with an initial public offering), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal having terms and conditions not less favorable to the applicable conversion, which shall be evidenced by notations made Holder than those contained in the Conversion Notice. The Holder and agreements as may be entered into by the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records other purchasers of the Holder shall be controlling and determinative Equity Securities in the absence of manifest errorNext Equity Financing.
Appears in 1 contract
Sources: Convertible Note Purchase Agreement (New Beginnings Acquisition Corp.)
Conversion. (Aa) This Debenture shall be convertible into shares of Common Stock at Subject to and upon compliance with the option provisions of the HolderFiscal Agency Agreement, in whole or in part a holder of Securities is entitled, at its option, at any time and from time to time, on or after the Original Issue Date (subject to date that is the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum later of (i) the quotient obtained by dividing Exchange Date and (xii) the outstanding date of the effectiveness of the Registration Statement to be filed by the Company under the Securities Act relating to the Common Stock issuable upon conversion of the Restricted Securities (the "Registration Date") and on or before the close of business on July 31, 2004 or in the case of a Security or portion thereof that is called for redemption by the Company, or the holder thereof elects to have such Security or portion thereof redeemed by the Company pursuant to Section 3(d) hereof, then in respect of such Security or such portion thereof until and including, but (unless the Company and the Guarantor default in making the payment due upon redemption) not after, the close of business on the 15th day next preceding the date fixed for redemption (or if such date is not a business day, as described in Section 11 hereof in New York City, then the next succeeding business day), to convert such Security (or any portion of the principal amount thereof which is U.S. $1,000 or an integral multiple thereof), at the principal amount thereof, or of such portion, into fully paid and nonassessable shares ("Conversion Shares") (calculated as to each conversion to the nearest 1/1000 of a share) of common stock, par value $.01 per share of the Company ("Common Stock"), at a Conversion Price equal to U.S. $17.385 aggregate principal amount of this Debenture to be converted and Securities for each Conversion Share (ythe "Conversion Price") (or at the current adjusted Conversion Price if an adjustment has been made as provided herein) by surrender of the Security, or in the case of a Security submitted for redemption pursuant to Section 3(d) hereof, satisfactory evidence of such submission, together with (as defined hereini) if a Bearer Security, all unmatured coupons and any matured coupons in default appertaining thereto, and if a Registered Security (if so required by the Company or the Fiscal Agent), instruments of transfer in form satisfactory to the Company and the Fiscal Agent, duly executed by the registered holder or by his duly authorized attorney, and (ii) the conversion notice hereon duly executed (x) at the principal corporate trust office of the Fiscal Agent, or at such other office or agency of the Company as may be designated by it for such purpose in New York City, or (y) subject to any laws or regulations applicable thereto and subject to the right of the Company to terminate the appointment of any such conversion agency, at the office of the Principal Paying Agent in London, and if the Securities are listed on the Luxembourg Stock Exchange and so long as listed thereon, Bankers Trust Luxembourg, S.A, 14 Boulevard, F.D. Roosevelt, L-2450 Luxembourg, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ offices or agencies as the Company may designate. In lieu of issuing shares of Common Stock upon such conversion, the Company may elect, in its sole discretion, to pay cash (including Additional Amounts, if any) in respect of all or a portion of the shares of Common Stock otherwise issuable upon such conversion based on the Market Price of such shares, all as provided in the Fiscal Agency Agreement.
(b) In the case of a conversion after the close of business on a Record Date next preceding any interest payment date and before the opening of business on such interest payment date, the holder of record of a Registered Security at such Record Date is to receive an installment of interest on the interest payment date. No payment or adjustment shall be made upon any conversion for dividends on the Common Stock delivered on conversion. Except as set forth in the first sentence of this subsection (b), accrued interest from the immediately preceding interest payment date until the date of conversion (together with any Additional amounts, if any, thereon) will be paid to the holder within five business days after presentment for conversion on account of any interest accrued on the Securities surrendered for conversion, except that interest on Registered Securities surrendered for conversion after the close of business on a Record Date and before the opening of business on the next succeeding interest payment date shall be paid in an amount equal to (I) the product of (x) interest payable on such interest payment date on the outstanding principal amount being surrendered for conversion. No fractions of this Debenture to shares or scrip representing fractions of shares will be converted and issued or delivered on conversion, but instead of any fractional interest the Company shall pay a cash adjustment as provided in the Fiscal Agency Agreement. Such conversion shall be so effected by the Company, except payment of accrued interest (ytogether with Additional Amounts, if any, thereon) which will be paid by the product Paying Agent in accordance with the provisions for payment of interest (1together with Additional Amounts, if any, thereon) set forth herein.
(i) In case at any time the quotient obtained by dividing .12 by 360 and (2) Company shall pay or make a dividend or other distribution on any class of capital stock of the number Company in shares of days for which such principal amount was outstandingCommon Stock, divided by (II) the Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced so that the same shall equal the price determined by multiplying such Conversion Date, provided, that if Price by a fraction of which the Company numerator shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not A-20PAGE be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderoutstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares of Common Stock constituting such dividend or other distribution, such adjustment to become effective immediately after the opening of business on the day following the date fixed for such determination.
(ii) In the case at any time the Company shall (A) subdivide its outstanding shares of Common Stock, (B) Notwithstanding anything combine its outstanding shares of Common Stock into a smaller number of shares, or (C) issue by reclassification of its shares of Common Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation) any shares of capital stock, the Conversion Price in effect at the effective date of such subdivision, combination or reclassification shall be proportionately adjusted so that the holder of any Security surrendered for conversion after such time shall be entitled to receive the contrary contained hereinaggregate number and kind of shares which, if on such Security had been converted immediately prior to such time, the holder would have owned upon such conversion and been entitled to receive upon such subdivision, combination or reclassification. Such adjustment shall become effective immediately after the effectiveness of such subdivision, combination or reclassification. Such adjustment shall be made successively whenever any Conversion Date:event listed above shall occur.
(1iii) In case at any time the Company shall fix a record date for the issuance of rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase Common Stock at a price per share less than the current market price per share of Common Stock (determined as provided in paragraph (v) of this subsection (c)) on such record date, the Conversion Price in effect at the opening of business on the day following such record date shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in close of business on such record date plus the number of shares of Common Stock;Stock which the aggregate of the offering price of the total number of shares so offered for subscription or purchase would purchase at such current market price per share of Common Stock and the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following such record date. Such reduction shall be made successively whenever such a record date is fixed; and in the event that such rights or warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such record date had not been fixed.
(2iv) In case at any time the Underlying Shares issuable Company shall fix a record date for such conversion the making of a distribution, by dividend or otherwise, to all holders of its shares if Common Stock, of evidences of its indebtedness or assets (including securities, but excluding any interest payable dividend or distribution referred to in sharesparagraph (i) of this subsection (xc), any rights or warrants referred to in paragraph (iii) are of this subsection (c), and any dividend or distribution paid in cash out of the retained earnings of the Company), then in each such case the Conversion Price in effect after such record date shall be determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, of which numerator shall be the total number of outstanding shares of Common Stock multiplied by the current market price per share of Common Stock (determined as provided in paragraph (v) of this subsection (c)) on such record date, less the fair market value (as determined by the Board of Directors of the Company, whose determination shall be conclusive and described in a statement filed with the Fiscal Agent) of the portion of the assets or evidences of indebtedness so to be distributed, and of which denominator shall be the total number of outstanding shares of Common Stock multiplied by such current market price per share of Common Stock. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that such distribution is not registered for resale pursuant so made, the Conversion Price shall again be adjusted to an effective Underlying Shares Registration Statement be the Conversion Price which would then be in effect if such record date has not been fixed.
(v) For the purpose of any computation under paragraphs (iii) and (yiv) may not of this subsection (c), the current market price per share of Common Stock on any date shall be sold without volume restrictions pursuant deemed to Rule 144(k) promulgated under be the Securities Act average of the Closing Prices (as defined below) for the 15 consecutive trading days upon which the principal trading market for the Common Stock is open and selected by the Company commencing not less than 20 nor more than 30 days before the day in Section 6);
(3) question. The "Closing Price" for any day shall be the last reported sales prices regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices regular way, in either case on the American Stock Exchange or, if the Common Stock is not or admitted to trading on such exchange, on the principal national securities exchange on which the Common Stock is listed or quoted for admitted to trading or, if not listed or admitted to trading on any national securities exchange, the OTC closing sale price quoted on the Nasdaq National Market, or on a Subsequent Market;if not so quoted, as determined by the Company.
(4vi) The Company may make such adjustments in the Conversion Price, in addition to those required by paragraphs (i), (ii) and, (iii) selected by the Company has failed of this section, as it considers to timely satisfy its conversion obligations hereunder; orbe advisable in order that any event treated for United States Federal income tax purposes as a dividend of stock or stock rights shall not be taxable to the recipients.
(5vii) No adjustment in the issuance Conversion Price shall be required unless such adjustment would require an increase or decrease of at least U.S. $.25 in such Conversion Price; provided, however, that any adjustment which by reason of this paragraph (vii) is not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this subsection (c) shall be made to the nearest cent or to the nearest 1/1000 of a share, as the case may be.
(d) Whenever the Conversion Price is adjusted and in the event of certain other corporate actions, as herein provided, the Company shall give notice, all as provided in the Fiscal Agency Agreement.
(e) The Company shall file, as soon as practicable following the Closing Date, a shelf registration statement with the United States Securities and Exchange Commission covering the resale of the shares of Common Stock would result in a violation issuable upon conversion of Sections 4(a)(iithe Securities ("Registrable Securities"), then, ; provided that any holder of any Securities or Registrable Securities shall not sell any shares pursuant to such registration statement unless and until it provides to the Company such information as the Company may not pay interest reasonably request for use in kind connection with the identification of such holder as a selling stockholder in such registration statement, or any prospectus included therein, and must pay interest no such sale shall be made by such holder pursuant to such registration statement unless and until such information is included by the Company in cash such registration statement or prospectus. The Company shall in good faith use its best efforts and at its cost to cause such registration statement to be declared effective as promptly as practicable thereafter and to include in such registration statement the information provided by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to a holder as a selling stockholder and shall notify the product of (a) the outstanding principal amount Fiscal Agent of the Debentures effectiveness thereof and agrees to use its best efforts to (i) cause all registrations with, and to obtain any approvals by, any governmental authority under any Federal or state law of the United States that may be converted on required in connection with the conversion of the Securities into Common Stock and the resale thereof, (ii) maintain the effectiveness of such Conversion Date and (bregistrations until the date that Rule 144(k) under the product Securities Act is available for the resale of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock issuable upon conversion of the Restricted Securities (or other securities issuable upon conversion of the Securities) and (iii) to list the shares of Common Stock required to be issued or delivered upon conversion of Securities (or other securities issuable upon conversion of the Securities) prior to such issue or delivery on such national securities exchange or automated over-the-counter trading market where such Common Stock is listed or traded at the option time of such delivery. The Company and the HolderGuarantor, in whole or in part at any time jointly and from time severally, shall, without limitation as to time, after the Original Issue Date (subject indemnify and hold harmless, to the limitations on conversion set forth fullest extent permitted by law, each holder of Registrable Securities, the officers, directors and agents and employees of each of them, each person who controls such holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended) and the officers, directors, agents and employees of any such controlling person, from and against all losses, claims, damages, liabilities, costs (including, without limitation, the costs of preparation and attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering any such registration statement, or related prospectus or in any amendment or supplement thereto, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are based solely upon information, if any, furnished in writing to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debentureby such holder expressly for use therein; provided, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and that the Company shall maintain records showing not be liable to any holder of Registrable Securities to the principal amount converted and the date extent that any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if either (a)(i) such conversions. In the event of any dispute holder failed to send or discrepancy, the records deliver as required a copy of the Holder shall be controlling final prospectus with or prior to the delivery of written confirmation of the sale by such holder of a Registrable Security to the person asserting the claim from which such Losses arise and determinative in (ii) the absence of manifest error.prospectus would have completely corrected such untrue statement or alleged untrue statement or such omission or alleged
Appears in 1 contract
Conversion. (A1) This Debenture Provided that there are no unresolved claims for losses incurred by the Parent pursuant to the indemnification provisions of Section 8 of the Purchase Agreement, the holder of this Instrument is entitled at any time after August 30, 2003 and from time to time before the close of business on the Maturity Date, to convert the principal amount of this Instrument (or any portion of the principal amount hereof that is an integral multiple of $1,000), into fully paid and nonassessable Common Stock (calculated as to each conversion to the nearest 1/100 of a share) of the Parent at the rate of 62.50 shares of Common Stock for each $1,000 principal amount of Instrument (or at the then current adjusted rate if an adjustment has been made as provided below) (the "Conversion Rate") by surrender of this Instrument, duly endorsed or assigned to the Company or in blank to the Company at the Designated Office, accompanied by written notice to the Company, in the form attached hereto, that the holder hereof elects to convert this Instrument (or if less than the entire principal amount hereof is to be converted, specifying the portion hereof to be converted). If the holder elects to exercise its conversion right hereunder, then the Company shall, within five (5) Business Days after receipt of written notice of such election, deliver or cause to be delivered to the holder at the address specified by the holder to the Company in the conversion notice a certificate or certificates for the Common Stock issued upon such conversion and any replacement Instrument issued as a result of any partial conversion of this Instrument.
(2) Upon surrender of this Instrument for conversion, the holder will be entitled to payment in cash within three (3) Business Days thereafter of the interest accrued on the principal amount of this Instrument then being converted and unpaid to such date of conversion (a "Company Conversion Date").
(3) Subject to Section 2(b) below, no payment or adjustment is to be made on conversion for dividends on the Common Stock issued on conversion hereof. No fractions of shares or scrip representing fractions of shares will be issued on conversion, but instead of any fractional interest, the Company shall be convertible pay a cash adjustment, computed on the basis of the Closing Price of the Common Stock on the Trading Day immediately prior to the Company Conversion Date, or, at its option, the Company shall round up to the next higher whole share.
(4) In the event that the conversion of this Instrument into shares of Common Stock at would require the option Parent and the holder of this Instrument to file notification and report forms with the Federal Trade Commission (the "FTC") and Antitrust Division of the Holder, in whole or in part at any time and from time to time, after Department of Justice (the Original Issue Date (subject "DOJ") pursuant to the limitations on conversion set forth in Section 4(a)(ii) hereofHart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (th▇ "▇▇▇ ▇▇▇"). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of , ▇▇▇n (i) the quotient obtained by dividing (x) the outstanding principal amount holder of this Debenture Instrument shall, and the Company shall cause the Parent to be converted use best efforts to complete all applicable filings and (y) provide all necessary information as required pursuant to the Conversion Price (as defined herein)HSR Act, and (ii) the amount equal to (I) the product of (x) the outstanding principal amount holder of this Debenture Instrument and the Company agree that such conversion of this Instrument into shares of Common Stock shall not occur until such time as the required filings are made pursuant to the HSR Act and the required waiting period(s) have expired or early termination of the required waiting period(s) has been granted by the FTC or the DOJ. The Parent and the holder will each bear their own respective filing fees for any filings made pursuant to the HSR Act, and the Company shall cause the Parent to pay any such fees to be converted borne by it. The Company shall, if the holder so elects, and within the time period prescribed in Section 2(a)(1) hereof, deliver or cause to be delivered the Common Stock issuable upon conversion of this Instrument to any third party or parties designated by the holder, subject to compliance with Sections 2(f), 8(d) and 8(f) hereof.
(yb) the product of The Conversion Rate will be subject to adjustments from time to time as follows:
(1) In case the quotient obtained Parent shall pay or make a dividend or other distribution on Common Stock of the Parent payable in Common Stock, the Conversion Rate in effect at the opening of business on the day following the Determination Date (as hereinafter defined) for such dividend or other distribution shall be increased by dividing .12 such Conversion Rate by 360 and (2) a fraction of which the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company numerator shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock outstanding at the close of business on such Determination Date and the denominator shall be the sum of such number of shares of Common Stock and the total number of shares of Common Stock constituting such dividend or other distribution, such increase to become effective immediately after the opening of business on the day following such Determination Date. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include Common Stock held in the treasury of the Parent but shall include Common Stock issuable upon a conversion hereunderin respect of scrip certificates issued in lieu of fractions of Common Stock. The Parent will not pay any dividend or make any distribution on Common Stock held in the treasury of the Parent.
(B2) Notwithstanding anything In case the Parent shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (7) of this Section 2(b)) of the Common Stock on the Determination Date for such distribution, the Conversion Rate in effect at the opening of business on the day following such Determination Date shall be increased by dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on such Determination Date plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on such Determination Date plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following such Determination Date. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include Common Stock held in the treasury of the Parent but shall include Common Stock issuable in respect of scrip certificates issued in lieu of fractions of Common Stock. The Parent will not issue any rights, options or warrants in respect of Common Stock held in the treasury of the Parent. Upon the expiration of any right, option or warrant to purchase Common Stock the issuance of which resulted in an adjustment to the contrary contained hereinConversion Rate pursuant to this paragraph (2) of Section 2(b), if any such right, option or warrant shall expire and shall not have been exercised, the Conversion Rate shall immediately upon such expiration be recomputed to the Conversion Rate which would have been in effect had the adjustment of the Conversion Rate made upon the issuance of such right, option or warrant been made on any Conversion Date:the basis of offering for subscription or purchase only that number of shares of Common Stock actually purchased upon the exercise of such right, option and warrant actually exercised.
(3) In case outstanding Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Parent shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section 2(b), (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section 2(b) and (iv) any merger or consolidation to which Section 2(h) applies (the "Distributed Property"), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the Determination Date for such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (7) of this Section 2(b)) of the Common Stock on such Determination Date less the then fair market value (as determined in good faith by the Board of Directors of the Parent in accordance with the provisions of this paragraph 4 of Section 2(b)) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following such Determination Date; provided, however, that if the Distributed Property consists of shares of capital stock of a Subsidiary, the Parent may, at its option and in lieu of the foregoing adjustment to the Conversion Rate, elect to make adequate provision so that the holder of this Instrument shall have the right to receive upon conversion the amount of such shares of capital stock that such holder of this Instrument would have received if such holder of this Instrument had converted such Instrument on the record date. If the Board of Directors determines the fair market value of any distribution for purposes of this paragraph (4) by reference to the actual or when issued trading market for any securities constituting such distribution, it must in doing so consider the prices in such market over the same period used in computing the current market price per share pursuant to paragraph (7) of this Section 2(b). In the event the Parent implements a stockholder's rights plan (a "Rights Plan"), upon conversion of this Instrument into Common Stock, to the extent that the Rights Plan is still in effect upon such conversion, the holder of this Instrument will receive, in addition to the Common Stock, the rights described therein (whether or not the rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in the Rights Plan. Any distribution of rights or warrants pursuant to the Rights Plan in compliance with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 2(b). Rights or warrants distributed by the Parent to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Parent's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 2(b) (and no adjustment to the Conversion Rate under this Section 2(b) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 2(b). If any such right or warrant, including any such existing rights or warrants distributed prior to the original issue date of this Instrument, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this section was made, (x) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (y) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(5) In case the Parent shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of Section 2(b)) in an aggregate amount that, combined with (I) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the twelve (12) months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) of Section 2(b) has been made and (II) the aggregate of any cash plus the fair market value (as determined by the Parent's Board of Directors, whose determination shall be conclusive and described in a board resolution) of consideration payable in respect of any tender offer by the Parent or any of its subsidiaries for all or any portion of the Common Stock concluded within the twelve (12) months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of Section 2(b) has been made (the "combined cash and tender amount"), exceeds ten percent (10%) of the product of the current market price per share of the Common Stock (determined as provided in paragraph (7) of this Section 2(b)) on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the current market price per share of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over ten percent (10%) of such aggregate current market price divided by (y) the number of shares of Common Stock at the time authorized, unissued outstanding on such date for determination and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2ii) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.denomina
Appears in 1 contract
Sources: Convertible Note Agreement (Catapult Communications Corp)
Conversion. (Aa) This Debenture shall be convertible into shares of Common Stock at the option of the HolderThe Holder may, in whole or in part at any time and from time to time, after convert all or any part of this Note into fully paid and non-assessable shares of common stock of the Original Issue Date (subject Company by delivery of a conversion notice to the limitations on conversion set forth in Section 4(a)(ii) hereof)Company. The effective date of any conversion shall be the date of the conversion notice. Upon any conversion the Company will within three business days of receipt of this Note and the conversion notice, issue to the Holder such number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of common stock equal to (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be Note being converted plus all accrued and (y) the Conversion Price (as defined herein), and unpaid interest thereon divided by (ii) $4.715625 (the amount equal to (I) "Conversion Price"). If the product of (x) Note is converted for less than the outstanding principal full amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstandingprincipal, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay cancel the interest due on a Conversion Date in cash pursuant original Note and issue to the terms hereofHolder a new Note, subsection of like tenor, for the remaining principal balance.
(iib) The Company shall not pay any and all taxes (other than transfer taxes) which may be used in imposed with respect to the calculation issuance and delivery of the shares of common stock upon the conversion of this Note.
(c) No fractional shares of common stock are to be issued upon the conversion of this Note, but the Company shall instead round up to the next whole number the number of shares of Common Stock issuable common stock to be issued upon a conversion hereundersuch conversion.
(Bd) Notwithstanding anything to the contrary contained herein, this Note shall not be convertible by a Holder to the extent (but only to the extent) that, if on any Conversion Date:
convertible by such Holder, such Holder would beneficially own in excess of 4.9% (1the "Applicable Percentage") of the number of shares of Common Stock at common stock. --------------------- To the time authorizedextent the above limitation applies, unissued and unreserved for all purposesthe determination of whether this Note shall be exercisable (vis-a-vis other securities owned by Holder which contain similar limitations on conversion) shall be made on the basis of the earliest submission of this Note (vis-a-vis other securities owned by the Holder which contain similar limitations on conversion), or held as treasury stock, is insufficient in each case subject to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale aggregate percentage limitation. No prior inability to convert this Note pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading this paragraph shall have any effect on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount applicability of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount provisions of this Debenture paragraph with respect to any subsequent determination of convertibility. For the purposes of this paragraph, beneficial ownership and all accrued determinations and unpaid interest thereon subsequent calculations, including without limitation, with respect to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once givencalculations of percentage ownership, shall be irrevocabledetermined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and Regulation 13D and G thereunder. Conversions hereunder shall have the effect of lowering the outstanding principal amount The provisions of this Debenture plus all accrued and unpaid interest thereon paragraph may be implemented in an amount equal to a manner otherwise than in strict conformity with the applicable conversion, which shall be evidenced by notations made in terms of this Section with the Conversion Notice. The Holder approval of the Board of Directors of the Company and the Company shall maintain records showing Holder: (i) with respect to any matter to cure any ambiguity herein, to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the principal amount converted intended Applicable Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Applicable Percentage limitation; and (ii) with respect to any other matter, with the date of such conversions. In the event of any dispute or discrepancy, the records further consent of the Holder holders of a majority of the then outstanding shares of common stock. For clarification, it is expressly a term of this security that the limitations contained in this Section shall be controlling and determinative in the absence of manifest errorapply to each successor Holder.
Appears in 1 contract
Conversion. (Aa) This Debenture Immediately prior to the consummation of the Qualified IPO on or before the Maturity Date, the whole of the Principal Amount then outstanding shall be convertible converted automatically into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (ai) 5 multiplied by (ii) the quotient of (A) the sum of (1) the then total outstanding principal amount number of ordinary shares of the Debentures Company (including all options, warrants or other securities or equity convertible into or exercisable for or which carry rights to be subscribe for or purchase ordinary shares of the Company (excluding the Notes), on an as-converted on such basis, but excluding any Qualified Equity Securities (as defined below) and all the Conversion Date and Shares then in issue (if any)) plus (2) the then reserved but unallocated ordinary shares under the Company’s stock option plan divided by (B) 48 multiplied by (iii) the quotient of (A) the whole of the Principal Amount then outstanding divided by (B) USD25,000,000.00.
(b) Subject to Condition 6(a) above, the Noteholder shall have the right at any time but is not obliged to convert all or a portion of the Principal Amount into the amount of Conversion Shares equal to the product of (xi) 5 multiplied by (ii) the quotient obtained by dividing .12 by 360 and of (yA) the sum of (1) the then total outstanding number of days ordinary shares of the Company (including all options, warrants or other securities or equity convertible into or exercisable for or which such principal amount was outstandingcarry rights to subscribe for or purchase ordinary shares of the Company (excluding the Notes), on an as-converted basis, but excluding any Qualified Equity Securities (as defined below) and all the Conversion Shares then in issue (if any)) plus (2) the then reserved but unallocated ordinary shares under the Company’s stock option plan divided by (B) 48 multiplied by (iii) the quotient of (A) the portion of the Principal Amount being converted by the Noteholder divided by (B) USD25,000,000.00; provided that the Noteholder shall not be able to convert a portion of the Principal Amount that is less than USD250,000.00.
(Cc) This Debenture shall be For purposes of this Condition 6, “Qualified Equity Securities” means (i) all Shares (including all options, warrants or other securities or equity convertible into or exercisable for or which carry rights to subscribe for or purchase ordinary shares of Common Stock at the option Company on an as-converted basis) issued for cash prior to a Conversion under Condition 6(a) or Condition 6(b) where the aggregate of the Holder, in whole or in part at issue price and any time and from time to time, after the Original Issue Date (subject to the limitations on exercise price/conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to price reflects a pre-money valuation of the Company exceeding USD397,500,000.00 (if any) and (ii) all Shares to be issued and offered for purchase or subscription under a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion DateQualified IPO." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Sources: Subscription Agreement (Gushan Environmental Energy LTD)
Conversion. (A) This Debenture shall be convertible The mode of carrying the Merger into effect and the manner and basis of converting the shares of Anmore into shares of Sierra Gigante are as follows:
9.1 All of the shares of Anmore Common Stock at (par value.0001)issued and outstanding on the option Merger Date shall, by virtue of the HolderMerger and without any action on the part of the holders thereof, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of be converted into 10,000 shares of Sierra Gigante's Common Stock issuable upon a conversion hereunder (SGIG)(par value.001) to be adjusted by any increase for fractional shares and reduced by any Dissenting Shares (defined below) and shall be determined by adding distributed as shown opposite the sum of (iAnmore shareholder(s) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture names in exhibit A. The Sierra Gigante Common Stock to be converted and issued hereunder (y"▇▇▇ ▇▇▇▇ Shares") the Conversion Price (as defined herein), and (ii) the amount equal will be issued pursuant to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and Section 4 (2) of the number Securities Act of days for which such principal amount was outstanding1933 and/or Rule 506 of the General Rules and Regulations of the Securities and Exchange Commission, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant will be restricted as to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions transferability pursuant to Rule 144(k144 thereof, and will bear substantially the following legend: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "ACT") promulgated under the Securities Act (as defined in Section 6);
(3AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF SGIG." The sum of $90,000.00US will be paid to G▇▇▇▇▇ ▇▇▇▇▇ and/or Applecross Centre Development Ltd., a British Columbia , Canada corporation controlled by G▇▇▇▇▇ ▇▇▇▇▇. G▇▇▇▇▇ ▇▇▇▇▇ and/or Applecross has agreed that any cash finders fees due to unrelated party(s) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and paid from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Datehis net proceeds." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Conversion. All of the issued and outstanding shares of capital stock of the Merger Subsidiary and Holdings shall, by virtue of the Merger and without any action on the part of the respective holders thereof, be converted or cancelled, as the case may be, as follows:
(a) At the Effective Time, each outstanding share of common stock, par value $0.01 per share, of the Merger Subsidiary shall be converted into one share of common stock, par value $0.01 per share, of the Surviving Company.
(b) Each share of Holdings Common Stock owned by Holdings as treasury stock shall be cancelled and retired and shall cease to exist at the Effective Time, and no consideration shall be delivered in exchange therefor.
(c) Each share of Holdings Common Stock (other than shares to be cancelled in accordance with Section 2.5(b) hereof) (a “Share”) issued and outstanding immediately prior to the Effective Time shall be converted at the Effective Time into (i) the right to receive an amount of cash equal to the quotient obtained by dividing (A) This Debenture shall be convertible into shares the Purchase Price minus the Escrow Cash by (B) the sum of Common Stock at (1) the option number of the Holder, in whole or in part at any time Shares issued and from time to time, after the Original Issue Date (subject outstanding immediately prior to the limitations on conversion set forth in Section 4(a)(iiEffective Time plus (2) hereof). The the number of shares of Holdings Common Stock issuable upon subject to Vested Options (the “Fully Diluted Shares”) and (ii) the contingent and deferred right to receive (A) the portion of the Escrow Fund attributable to such Share as provided in the Escrow Agreement and (B) the portion of the proceeds received by the Company from the Retained Litigation and the unpaid portion of the Working Capital Holdback set aside by the Stockholders’ Representative pursuant to Section 2.7(d) attributable to such Share, determined on a conversion hereunder Pro Rata Basis.
(d) Each Vested Option shall be determined by adding converted at the sum of Effective Time into (i) the right to receive, in respect of each share of Holdings Common Stock subject to such Vested Option, an amount of cash, if any, equal to (A) the quotient obtained by dividing (x1) the outstanding principal amount of this Debenture to be converted and Purchase Price minus the Escrow Cash by (y2) the Conversion Price Fully Diluted Shares, minus (as defined herein), B) the exercise price payable upon exercise in full of such Vested Option and (ii) the amount equal contingent and deferred right to receive (IA) the product portion of the Escrow Fund attributable to such Vested Option as provided in the Escrow Agreement and (xB) the outstanding principal amount portion of this Debenture to be converted and (y) the product of (1) the quotient obtained proceeds received by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected from the Retained Litigation and the unpaid portion of the Working Capital Holdback set aside by the Stockholders’ Representative pursuant to pay the interest due Section 2.7(d) attributable to such Vested Option, determined on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderPro Rata Basis.
(Be) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number Each Option of shares of Common Stock Holdings that is not a Vested Option shall be cancelled at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingEffective Time.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Global BPO Services Corp)
Conversion. (A) This A Holder may not convert- this Debenture shall be convertible into or receive shares of Common Stock as payment of interest hereunder to the extent such conversion or receipt of such interest payment would result in the Holder, together with any affiliate thereof, beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act and the rules promulgated thereunder) in excess of 4.9% of the then issued and outstanding shares of Common Stock, including shares issuable upon conversion of, and payment of interest on, this Debenture held by such Holder after application of this Section. Since the Holder will not be obligated to report to the Obligor the number of shares of Common Stock it may hold at the time of a conversion hereunder, unless the conversion at issue would result in the issuance of shares of Common Stock in excess of 4.9% of the then outstanding shares of Common Stock without regard to any other shares which may be beneficially owned by the Holder or an affiliate thereof, the Holder shall have the authority and obligation to determine whether the restriction contained in this Section will limit any particular conversion hereunder and to the extent that the Holder determines that the limitation contained in this Section applies, the determination of which portion of the principal amount of this Debenture is convertible, shall be the responsibility and obligation of the Holder. If the Holder has delivered a Conversion Notice for a principal amount of this Debenture that, without regard to any other shares that the Holder or its affiliates may -beneficially own, would result in the issuance in excess of the permitted amount hereunder, the Obligor shall notify the Holder of this fact and shall honor the conversion for the maximum principal amount permitted to be converted on such Conversion Date in accordance with the periods described in Section 3(a)(i)(A) and, at the option of the Holder, either retain,any principal amount tendered for conversion in whole excess of the permitted amount hereunder for future conversions or in part at any time and from time to time, after the Original Issue Date (subject return such excess principal amount to the limitations on conversion set forth in Section 4(a)(ii) hereof)Holder. The number provisions of this Section may be waived by a Holder (but only as to itself and not to any other Holder) upon not less than 65 days prior notice to the Obligor. -Other Holders shall be unaffected by any such waiver. -
(i) Nothing herein shall limit a Holder's right to pursue actual damages or declare an Event of Default pursuant to Section 2 herein for the Obligor `s failure to deliver certificates representing shares of Common Stock issuable upon conversion within the period specified herein and such Holder shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, in each case without the need to post a bond or provide other security. The exercise of any such rights shall not prohibit the Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable law. -
(ii) In addition to any other rights available to the Holder, if the Obligor fails to deliver to the Holder such certificate or certificates pursuant to Section 3(a)(i)('A) by the fifth (5th) Trading Day after the Conversion Date, and if after such fifth (5th) Trading Day the Holder purchases (in an open market transaction or otherwise) Common Stock to deliver in satisfaction of a sale by such Holder of the Underlying Shares which the Holder anticipated receiving upon such conversion hereunder (a "Buy-In"), then the Obligor shall be determined (A) pay in cash to the Holder (in addition to any remedies available to or elected by adding the sum of (iHolder) the quotient obtained amount by dividing which (x) the outstanding principal amount of this Debenture to be converted and Holder's total purchase price (yincluding brokerage commissions, if any) for the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and Common Stock so purchased exceeds (y) the product of (1) the quotient obtained aggregate number of shares of Common Stock that such Holder anticipated receiving from the conversion at issue multiplied by dividing .12 by 360 and (2) the number market price of days for which such the Common Stock at the time of the sale giving rise to such-purchase obligation and (B) at the -option of the Holder, either reissue a Debenture in the principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant equal to the terms hereof, subsection (ii) shall not be used in principal - amount of the calculation of attempted conversion or deliver to the Holder the number of shares of Common Stock issuable upon that would have been issued had the Obligor timely complied with its delivery requirements under Section 3(a)(z)(A). For example, if the Holder purchases Common Stock - having a total purchase price of $11,000 to oover a Buy-In with respect to an attempted conversion hereunderof Debentures with respect to which the market price of the Underlying Shares on the date of conversion was a total of $10,000 under clause (A) of the immediately preceding sentence, the Obligor shall be required to pay the Holder $1,000. The Holder shall provide the Obligor written notice indicating the amounts payable to the Holder in respect of the Buy-In.
(Bi) Notwithstanding anything The Holder is entitled, at its option, to convert, and sell on the same day, at any time, until payment in full of this Debenture, all or any part of the principal amount of the Debenture, plus accrued interest, into shares of the Company's Common Stock at the price per share equal to the contrary contained hereinlesser of (a) the lowest Closing Bid Price of the Common Stock during the ten (10) trading days immediately prior to the date the Obligor files the Underlying Shares Registration Statement (the "Fixed Conversion Price") or (b) eighty percent (80%) of the lowest Closing Bid Price, if on any as quoted by Bloomberg, LP (the "VWAP") of the Common Stock for the five (5) trading days immediately preceding the Conversion Date:. Subparagraphs (a) and (b) above are individually referred to as a "Conversion Price" and may be adjusted pursuant to the other terms of this Debenture.
(1ii) If the Obligor, at any time while this LYebenture is outstanding, shall (a) pay a stock dividend or otherwise make a distribution- or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock, (b) subdivide outstanding shares of Common Stock into a larger number of shares, (c) combine (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (d) issue by reclassification of shares of the Common Stock any shares of capital stock of the Obligor, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock at (excluding treasury shares, if any) outstanding before such event and of which the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares denominator shall be the number of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result outstanding after such event. Any adjustment made pursuant to this Section shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a violation subdivision, combination or re-classification. -
(iii) If the Obligor, at any time while this Debenture is outstanding, shall issue rights, options or warrants to all holders of Sections 4(a)(ii), then, the Company may Common Stock (and not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (aHolder) the outstanding principal amount of the Debentures entitling them to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days subscribe for which such principal amount was outstanding.
(C) This Debenture shall be convertible into or purchase shares of Common Stock at a price per share less than the Closing Bid Price at the record date mentioned below, then the Conversion Price shall be multiplied by a fraction, of which the denominator shall be the number of shares of the Common Stock (excluding treasury shares, if any) outstanding on the date of issuance of such rights or warrants (plus the number of additional shares of Common Stock offered for subscription or purchase), and of which the numerator shall be the number of shares of the Common Stock (excluding treasury shares, if any) outstanding on the date of issuance of such rights or warrants, plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at such Closing Bid Price. Such adjustment shall be made whenever such rights or warrants are issued, and shall become effective immediately after the record date for the determination of stockholders entitled to receive such rights, options or warrants. However, upon the expiration of any such right, option or warrant to purchase shares of the Common Stock the issuance of which resulted in an adjustment in the Conversion Price pursuant to this -Section, if any such right, option or warrant shall expire and shall not have been exercised, the Conversion Price shall immediately upon such expiration be recomputed and effective immediately upon such expiration be increased to the price which it would have been (but reflecting any other adjustments in the Conversion Price made pursuant to the provisions of this Section after the issuance of such rights or warrants) had the adjustment of the Conversion Price made upon the issuance of such rights, options or warrants been made on the basis of offering for subscription or purchase only that number of shares of the Common Stock actually purchased upon the exercise of such rights, options or warrants actually exercised.
(iv) If the Obligor or any subsidiary thereof, as applicable, with respect to Common Stock Equivalents (as defined below), at any time while this Debenture is outstanding, shall issue shares of Common Stock or rights, warrants, options or other securities or debt that are convertible into or exchangeable for shares of .Common Stock ("Common Stock Equivalents") entitling any Person to acquire shares of Common Stock, at a price per share less than the Conversion Price (if the holder of the Common Stock or Common Stock Equivalent so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options - or rights per share which is issued in connection with suck issuance, be entitled to receive shares of Common Stock at a price -per share which is less than the Conversion Price, - such issuance shall - be deemed to have occurred for less than the Conversion Price), then, at the sole option of the Holder, the Conversion Price shall be adjusted to mirror the conversion, exchange or purchase price for such Common Stock or Common Stock Equivalents (including any reset provisions thereof) at issue. Such adjustment shall be made whenever such Common Stock or Common Stock Equivalents are issued. The Obligor shall notify the Holder in whole writing, no later than one (1) business day following the issuance of any Common Stock or in part Common Stock Equivalent subject to this Section, indicating therein the applicable issuance price, or of applicable reset price, exchange price, conversion price and other pricing terms. No adjustment under this Section shall be made as a result of issuances and exercises of options to purchase shares of Common Stock issued for compensatory purposes pursuant to any of the Obligor's stock option or stock purchase plans.
(v) If the Obligor, at any time while this Debenture is outstanding, shall distribute to all holders of Common Stock (and from time not to timethe Holder) evidences of its indebtedness or assets or rights or warrants to subscribe for or purchase any security, then in each such case the Conversion Price at which this Debenture shall thereafter be convertible shall be determined by multiplying the Conversion Price in effect immediately prior to the record date fixed for determination of stockholders entitled to receive such distribution by a fraction of which the denominator shall be the Closing Bid Price determined as of the record date mentioned above, and of which the numerator shall be such Closing Bid Price on such record date less the then fair market value at such record date of the portion of such assets -or evidence of indebtedness so distributed applicable to one outstanding share of the Common Stock as determined by the Board of Directors in good faith. In either case the adjustments shall be described in a statement provided to the Holder of the portion of assets or evidences of indebtedness so distributed or such subscription rights applicable to one share of Common Stock. Such adjustment shall be made whenever any such distribution is made and shall become effective immediately after the Original Issue Date record date mentioned above. -
(subject vi) In case of any reclassification of the Common Stock or any compulsory share exchange pursuant to which the limitations on conversion set forth in Section 4(a)(ii) hereof). The Common Stock is converted into other securities, cash or--property, the Holder shall effect conversions by delivering to have the Company a completed notice substantially right thereafter to, at its option, (A) convert the then outstanding principal amount, together with all accrued but unpaid interest and any other amounts then owing hereunder in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount respect of this Debenture into the shares of stock and other securities, cash and property receivable upon or deemed to be held by holders of the Common Stock following such reclassification or share exchange, and the Holder of -this Debenture shall be entitled upon such event to receive such amount of securities, cash or prOperty as the shares of the Common Stock of the Obligor into which the then outstanding principal amount, together with all accrued and but unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender and any other amounts then owing hereunder in respect of this Debenture could have been converted immediately prior to such reclassification or share ~xchange would have been entitled, or (B) require the Company in order Obligor to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering prepay the outstanding principal amount of this Debenture Debenture, plus all accrued interest and unpaid interest thereon other amounts due and payable thereon. The entire prepayment price shall be paid in an amount equal cash. This provision shall similarly apply to successive reclassifications or share exchanges. -
(vii) Within 30 days of the date hereof, the Obligor shall maintain a share reserve of not less than 65,000,000 shares of Common Stock issuable upon conversion of this Debenture; and within three (3) Business Days following the receipt by the Obligor of a Holder's notice that such minimum number of Underlying Shares is not so reserved, the Obligor shall promptly reserve a sufficient number of shares of Common Stock to comply with such requirement. -
(viii) All calculations under this Section 3 shall be rounded up to the applicable conversion, which shall be evidenced by notations made in nearest $0.001 of a share. - (ix) Whenever the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancyPrice is adjusted pursuant to Section 3 hereof, the records Obligor shall promptly mail to the Holder a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the Holder shall be controlling and determinative in the absence of manifest errorfacts requiring such adjustment.
Appears in 1 contract
Conversion. (Aa) This Debenture Subject to the provisions of Section 4, the Holder shall be convertible into shares of Common Stock at have the option of right, but not the Holderobligation, in whole or in part at any time and from time-to-time while all or any portion of the Principal Amount under the Note that is still outstanding to time, after convert all or any portion of the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The outstanding Principal Amount and all accrued but unpaid interest thereon into a number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding of the sum of Company (ithe “Conversion Shares”) calculated as the quotient obtained by dividing (x) the outstanding principal total dollar amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by $1.20 (II) the “Conversion Price on Price”). In the Conversion Date, provided, event that if the Company shall have timely elected Holder wishes to pay exercise the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion rights set forth in this Section 4(a)(ii) hereof3(a). The , the Holder shall effect conversions by delivering to give the Company a completed written notice substantially in (the form attached hereto as Exhibit A (a "“Conversion Notice"). The ”) of such conversion specifying the Principal Amount and accrued interest to be converted, which notice shall be effective on the date of such Conversion Notice shall set forth Notice, if such Conversion Noticed is received by the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to Company not later than 4:00 p.m. Eastern Time on such date or, if such Conversion Noticed is received by the conversion at issueCompany after 4:00 p.m. Eastern Time on such date, then on the next succeeding Business Day. The date on which a such Conversion Notice is delivered deemed to be effective is hereinafter referred to as the "“Conversion Date." Unless ”
(b) Not later than five (5) Business Days after any Conversion Date, the Company will deliver to the Holder, by overnight courier service to the address of the Holder is converting set out in Section 6 (or such other address as the entire principal amount outstanding under this DebentureHolder may notify the Company of from time to time in accordance with Section 6), certificates representing the Conversion Shares (bearing appropriate restrictive legends) representing the aggregate number of Conversion Shares being acquired.
(c) Upon a conversion hereunder, the Holder is Company shall not be required to physically surrender this Debenture issue certificates representing fractions of any Conversion Shares, and the number of Conversion Shares shall be rounded down to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errornearest whole number.
Appears in 1 contract
Conversion. (Aa) This Debenture The entire outstanding principal balance and all unpaid accrued interest shall be convertible automatically convert into shares of the Company’s Common Stock Stock, par value $0.001 per share (“Common Stock”), on the Maturity Date at a conversion price of $4.59 per share (the “Conversion Price”); provided, however, that in the event that Payor issues and sells shares of Common Stock, or securities convertible or exchangeable into Common Stock, to investors (the “Investors”) on or before the Maturity Date in one or more financing transactions (which, for clarity, shall not include issuances pursuant to the Company’s equity incentive plan), then at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject “Conversion Price” shall be equal to the limitations lowest price per share paid by an Investor purchasing the Common Stock (or the lowest conversion or exchange price per share for securities convertible or exchangeable into Common Stock and purchased by an Investor) in any financing transaction(s) on conversion set forth or prior to the Maturity Date.
(b) Notwithstanding any other provision of this Note, in Section 4(a)(ii) hereof). The number of no event will shares of Common Stock be issued upon conversion of this Note, and this Note shall not convert, should such issuance require stockholder approval under the applicable rules and regulations of the Nasdaq Stock Market, including but not limited to Nasdaq Listing Rule 5635(d).
(c) The Company shall not issue or cause to be issued fractional shares of Common Stock on conversion of this Note. If any fraction of a share of Common Stock would, except for the provisions of this Section 3(c) be issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein)Note, and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderto be issued will be rounded up to the nearest whole share.
(Bd) Notwithstanding anything to The Company covenants that it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock for the contrary contained hereinsole purpose of issuance upon conversion of this Note, if on free from all mortgages, charges, pledges, liens, hypothecations or other security interests, preemptive rights or any Conversion Date:
(1) other actual contingent purchase rights of persons other than the Holder, not less than the aggregate number of shares of the Common Stock at as shall be issuable upon the time conversion of this Note. The Company covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, unissued validly issued, fully paid and unreserved nonassessable. The issuance of certificates for all purposesshares of the Common Stock on conversion of this Note shall be made without charge to the Holder hereof for any documentary, stamp or held as treasury stocksimilar taxes that may be payable in respect of the issue or delivery of such certificates.
(e) The conversion price under this Note shall be equitably adjusted for any dividends or other distributions of cash, is insufficient to pay interest hereunder securities or other property in respect of its shares of Common Stock;
(2) , or any reclassification, exchange, substitutions or otherwise in respect of the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingStock.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Conversion. (A1) This Debenture shall The holder of this Security may convert all or any part of the principal amount of this Security (or any portion thereof equal to $10,000 or any integral multiple of $10,000 in excess thereof), plus all or any accrued and unpaid interest on such principal amount to be convertible converted (although Holder may elect to have accrued but unpaid interest paid in cash), into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, on or after the Original Issue Date (subject to Date, at the limitations on conversion set forth Conversion Price then in Section 4(a)(ii) hereof)effect. The number of shares of Common Stock issuable upon a conversion hereunder of this Security shall be determined by adding dividing the sum principal amount of this Security or portion hereof, plus any accrued and unpaid interest (although Holder may elect to have accrued but unpaid interest paid in cash) on such principal amount to be converted, surrendered for conversion by the Conversion Price in effect on the Conversion Date. The initial conversion price shall be the Conversion Price and shall be subject to adjustment as provided in this Section 3. To convert this Security, the Holder hereof shall send by email or facsimile (or otherwise deliver) a copy of the fully executed conversion notice in the form attached as Exhibit A hereto (the “Conversion Notice”) to the Company. Notwithstanding anything to the contrary set forth herein, upon conversion of any portion of this Security in accordance with the terms hereof, the Holder shall not be required to physically surrender this Security to the Company unless (i) the quotient obtained by dividing (x) the outstanding full principal amount of represented by this Debenture to be Security is being converted and (y) the Conversion Price (as defined herein), and or (ii) the amount equal to Holder has provided the Company with prior written notice (Iwhich notice may be included in a Conversion Notice) the product of (x) the outstanding principal amount requesting reissuance of this Debenture Security upon physical surrender of this Security, provided that the Holder shall instead deliver the documentation to be converted and (ythe Company required by Section 12(f)(3) hereof if it notifies the product Company that this Security has been lost, stolen or destroyed. Upon receipt by the Company of (1) an email or facsimile copy of a Conversion Notice from the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstandingHolder, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected promptly send, via email or facsimile, a confirmation to pay the interest due on Holder stating that the Conversion Notice has been received, the date upon which the Company expects to deliver the Common Stock issuable upon such conversion and the name and telephone number of a contact person at the Company regarding the conversion. On or before the second (2nd) Trading Day following the date of receipt of a Conversion Date Notice, the Company shall (a) provided that the Company’s transfer agent is participating in cash pursuant the DTC (“DTC”) Fast Automated Securities Transfer Program, credit such aggregate number of shares of Common Stock to which the Holder shall be entitled to the terms hereof, subsection Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system or (iib) shall if the Company’s transfer agent is not be used participating in the calculation DTC Fast Automated Securities Transfer Program, instruct the Company’s transfer agent to issue and deliver as promptly as practicable (but in no event later than five (5) Trading Days after such date) to the address as specified in the Conversion Notice, a certificate, registered in the name of the Holder or its designee, in each case, for that number of shares of Common Stock issuable upon conversion of the portion of this Security being converted and (c) if so requested by the Holder, issue a conversion hereunder.
new Security in the form hereof representing the balance of the principal amount hereof not being converted, if any (Bthe applicable date under clauses (a) Notwithstanding anything and (b) above, the “Share Delivery Date”). If so requested in writing by the Holder, the Company shall deliver to the contrary contained hereinHolder physical certificates representing the Common Stock issuable upon conversion which shall, if required by the Purchase Agreement, bear the restrictive legend set forth in Section 5(e) of the Purchase Agreement. If the Company shall (x) fail on any Conversion Date:
(1) or prior to the Share Delivery Date to provide instruction to the Company’s transfer agent to issue and deliver a certificate to the Holder or credit the Holder’s balance account with DTC for the number of shares of Common Stock to which the Holder is entitled upon the Holder’s conversion of any principal amount and accrued interest thereon or on any date of the Company’s obligation to instruct the Company’s transfer agent to deliver shares of Common Stock as contemplated pursuant to clause (ii) below or (y) otherwise fail to convert this Note in accordance with its terms (any such event under clauses (x) and (y), a “Conversion Failure”), and if on or after such Trading Day the Holder purchases (in an open market transaction or otherwise) Common Stock to deliver in satisfaction of a sale by the Holder of Common Stock issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company shall, within three (3) Trading Days after the Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (the “Buy-In Price”), at which point the time authorized, unissued Company’s obligation to issue and unreserved deliver such certificate or credit the Holder’s balance account with DTC for all purposesthe shares of Common Stock to which the Holder is entitled upon the Holder’s conversion of the applicable principal amount and accrued interest thereon shall terminate, or held as treasury stock, is insufficient (ii) promptly honor its obligation to deliver by instructing the Company’s transfer agent to deliver to the Holder a certificate or certificates representing such Common Stock and pay interest hereunder cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (1) such number of shares of Common Stock;, times (2) the closing bid price of the Common Stock on the Conversion Date.
(2) Except as provided herein, the Underlying Shares issuable for such conversion (including Holder is not entitled to any interest payable in shares) (x) are not registered for resale rights of a holder of Common Stock until the Holder has delivered a Conversion Notice, and only to the extent this Security is deemed to have been converted into Common Stock pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in this Section 6);3.
(3) The Person or Persons entitled to receive the shares of Common Stock is not listed issuable upon a conversion of this Security shall be treated for all purposes as the record holder or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance holders of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, on the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount irrespective of the Debentures to be converted on date such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option issuable upon such conversion of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject Security are credited to the limitations on Holder’s account with DTC or the date of delivery of the certificates evidencing such shares of Common Stock, as the case may be.
(4) If this Security is physically surrendered for conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to Security is greater than the applicable conversionportion of this Security being converted, which shall be evidenced by notations made in the Conversion Notice. The Holder and then the Company shall maintain records showing as soon as practicable after receipt of this Security and at its own expense, issue and deliver to the Holder a new Security representing the outstanding principal amount converted and the date other amounts not converted.
(5) The Company will not issue fractional shares of such conversionsCommon Stock upon conversion of this Security. In the event of any dispute or discrepancylieu thereof, the records Company shall round such fraction of a share of Common Stock to the nearest whole share.
(6) The Company shall, if the Holder shall be controlling and determinative so elects, deliver the Common Stock issuable upon conversion of this Security to any third party designated in writing by the absence of manifest errorHolder.
Appears in 1 contract
Sources: Convertible Note Purchase and Credit Facility Agreement (Aehr Test Systems)
Conversion. The Members will take all actions reasonably requested by the Board in connection with an Initial Public Offering to effect a reorganization (an “IPO Reorganization”) of the Company into a corporation or other Entity (such corporation or other Entity being referred to as the “Successor Entity”) and causing all of the Interests to be transferred, exchanged or converted (free and clear of all liens, encumbrances, restrictions and adverse claims (other than those created by this Agreement)), as determined by the Board, into securities of the same class as the Publicly Offered Securities; provided, however, that (A) This Debenture shall in the event of any such IPO Reorganization, each Member’s Interests will be convertible into shares of Common Stock at the option of the Holdertransferred for, in whole or in part at any time and from time to timeexchanged or converted into, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The that number of shares of Common Stock issuable upon common stock having a conversion hereunder shall be determined by adding value (based on the sum of (iprice to the public in the Initial Public Offering) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture equal to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal that such Member would be deemed to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that have received if the Company shall have timely elected to pay (or a successor thereto) had been liquidated following the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection sale of 100% of its assets (iiand assumption of 100% of its liabilities) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon consideration in an amount equal to the applicable conversionCompany’s value implied by the per share price to the public of the Initial Public Offering and such consideration was distributed under Section 10.02(a), which (B) any such IPO Reorganization shall be evidenced by notations made effective on, and conditioned upon the occurrence of, such Initial Public Offering and (C) the Company will not effect an IPO Reorganization without the approval of the Transaction Committee, unless the rights and obligations of the Tiger Member in the Conversion Notice. The Holder Successor Entity immediately following the IPO Reorganization are, in all material respects, the same as the rights and obligations of the Tiger Member in the Company prior to consummation of the IPO Reorganization. In connection with an IPO Reorganization, the parties hereto shall, and shall maintain records showing cause the principal amount converted and Successor Entity to, enter into a stockholders, partnership or similar agreement providing the date Members who became stockholders, partners or other holders of equity interests of the Successor Entity in connection with such IPO Reorganization with rights with respect to their investment in the Successor Entity that are equivalent to the rights of such conversionsMembers under Article VI and Article XI hereof and subjecting such Members to obligations with respect to their investment in the Successor Entity that are equivalent to the obligations of the Members under Article VI and Article XI hereof. In For the purpose of this Section 11.04, in the event of any dispute or discrepancyan IPO Reorganization, after the records occurrence of such IPO Reorganization, respectively, all references to the Holder shall Company in this Section 11.04 will be controlling and determinative in deemed to refer to the absence of manifest errorSuccessor Entity.
Appears in 1 contract
Conversion. (Aa) Conversion at Option of Holder.
(i) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (as defined in SECTION 5) (subject to the limitations on conversion set forth in Section 4(a)(iiSECTION 3(B) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) equals the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and by (y) the Conversion Price (as defined hereinin SECTION 3(C)(I), and ). The Obligor shall deliver Common Stock certificates to the Holder prior to the Fifth (ii5th) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Trading Day after a Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(Bii) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
: (1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay principal and interest hereunder in shares of Common Stock;
; (2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
; (43) the Company Obligor has failed to timely satisfy its conversion obligations hereunderconversion; or
or (54) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(iiSECTION 3(B), then, at the Company may not pay interest option of the Holder, the Obligor, in kind and must pay interest in cash by deliveringlieu of delivering shares of Common Stock pursuant to SECTION 3(A)(I), shall deliver, within three (3) Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on plus any interest due therein divided by the Conversion Price, chosen by the Holder, and multiplied by the highest closing price of the stock from date of the conversion notice till the date that such cash payment is made. Further, if the Obligor shall not have delivered any cash due in respect of conversion of this Debenture or as payment of interest thereon by the fifth (5th) Trading Day after the Conversion Date and (b) Date, the product of (x) Holder may, by notice to the quotient obtained by dividing .12 by 360 and (y) Obligor, require the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into Obligor to issue shares of Common Stock at pursuant to SECTION 3(C), except that for such purpose the option Conversion Price applicable thereto shall be the lesser of the Holder, in whole or in part at any time Conversion Price on the Conversion Date and from time to time, after the Original Issue Date (Conversion Price on the date of such Holder demand. Any such shares will be subject to the limitations on conversion set forth in Section 4(a)(iiprovisions of this Section.
(iii) hereof). The Holder shall effect conversions by delivering to the Company Obligor a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company Obligor in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company Obligor shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Conversion. (A) This Debenture shall be convertible into Subject to Section 4(C) and Section 4(D), a holder of shares of Common Series A-1 Preferred Stock at the option of the Holdermay, in whole or in part at any time and from time to time, after the Original Issue Date (subject date of issuance of such shares and on or prior to the limitations on conversion set forth fifth calendar day prior to such date, if any, as may have been fixed for the redemption thereof in any permitted call for redemption pursuant to Section 11 below, by delivering to the Corporation written notice ("Conversion Notice"), convert one or more shares of Series A-1 Preferred Stock into the number of shares of the Corporation's common stock (the "Common Stock") equal to (i) $250.00 divided by (ii) the Conversion Price (as defined in Section 4(a)(ii) hereof4(E)). The Conversion Notice shall specify the number of shares of Series A-1 Preferred Stock to be converted, the applicable Conversion Price, the number of shares of Common Stock issuable upon a on conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used less than 8,000 shares of Series A-1 Preferred Stock, except if all shares of Series A-1 Preferred Stock then outstanding are being converted to Common Stock). From and after the date on which the Corporation received a Conversion Notice from a holder of a share of Series A-1 Preferred Stock (or if such date is not a business day in the calculation State of California, the next succeeding business day) (the "Conversion Date"), such share shall cease to be outstanding and the converting holder shall be deemed the owner of the number of shares of Common Stock into which such share of Series A-1 Preferred Stock was converted; provided, however, that in the event of a notice of redemption of any shares of Series A-1 Preferred Stock pursuant to Section 11 hereof, the right of the holder to convert the Series A-1 Preferred Stock shall terminate as to the number of shares designated for redemption at the close of business on the fifth calendar day preceding the redemption date, unless default is made in payment of the redemption price, in which event such right of the holder to convert any rights of the holder under Sections 2 and 3 hereof shall continue until such payment. The Corporation shall deliver to such holder an uncertificated security evidencing such shares of Common Stock through book-entry transfer within three business days following the Conversion Date or, at the written request of the holder as specified in the Conversion Notice, a physical stock certificate evidencing such shares within ten business days following the Conversion Date (such date of delivery referred to as the "Issue Date"). For purposes of the preceding sentence, the first business day following the Conversion Date shall count as the first business day for delivery of evidence of such shares of Common Stock. The Conversion Notice may be delivered via facsimile transmission to Informix Corporation, attention: Chief Financial Officer, telecopy no. (▇▇▇) ▇▇▇-▇▇▇▇. On the Issue Date, the Corporation shall issue and cause to be delivered (against delivery of the certificate representing the Series A-1 Preferred Stock (the "Preferred Certificate")) to the registered holder thereof at such address as such holder shall specify in the Conversion Notice a certificate or certificates (including uncertificated securities) for the number of full shares of Common Stock issuable upon the conversion, registered in such holder's name, together with cash (if any) as provided in Section 6. Such certificate or certificates shall be deemed to have been issued and any person so designated to be named therein shall be deemed to have become a conversion hereunderholder of record of such shares as of such Conversion Date. If on such Issue Date the number of shares of Series A-1 Preferred Stock to be delivered shall be less than the total number of shares represented by the Preferred Certificate, there shall be issued to the holder thereof or his assignee on such Issue Date a new Preferred Certificate evidencing the remaining Series A-1 Preferred Stock.
(B) Notwithstanding anything Subject to Section 4(C) and Section 4(D), each share of Series A-1 Preferred Stock shall automatically convert into Common Stock in accordance with the terms hereof but without the delivery of a Conversion Notice on the date that is 547 days excluding and following the date of issuance of such share (or if such date is not a business day in the State of California, the next succeeding business day) (the "Automatic Conversion Date"); provided, however, that the Automatic Conversion Date shall be extended as provided in the following circumstances: (I) if a Default Event identified in clauses (i) or (ii) of Section 2(C) above shall have occurred and continues at the time that such share of Series A-1 Preferred Stock would otherwise automatically convert into Common Stock, then no such automatic conversion shall occur and the Automatic Conversion Date shall be delayed for a period equal to 365 calendar days following and excluding the date on which the Default Event shall have been resolved pursuant to Section 2(C) hereof; (II) if a Default Event identifed in clause (iii) of Section 2(C) above shall have occurred and continues at the time that such share of Series A-1 Preferred Stock (or Similar Stock) would otherwise automatically convert into Common Stock, then no such automatic conversion shall occur and the Automatic Conversion Date shall be delayed for a period equal to the contrary contained hereinnumber of days required for the resolution of such Default Event; (III) if a Registration Request is made within 360 calendar days of the Automatic Conversion Date for such share of Series A-1 Preferred Stock , then such date shall be extended (even if on any no Default Event identified in clause (i) of Section 2(C) shall have occurred) as necessary to ensure that the Automatic Conversion Date is not less than 180 days from the effective date of the requested Registration Statement; and (IV) if a Required Consent has not been obtained within 180 calendar days of the Automatic Conversion Date for such share of Series A-1 Preferred Stock, then such date shall be extended (even if no Default Event identified in clause (ii) of Section 2(C) shall have occurred) as necessary to ensure that the Automatic Conversion Date is not less than 90 days from the date that the Required Consent is obtained. From and after the Automatic Conversion Date:
(1) , such shares of Series A-1 Preferred Stock shall cease to be outstanding and the converting holder shall be deemed the owner of the number of shares of Common Stock into which such shares of Series A-1 Preferred Stock were converted. The Corporation shall deliver to such holder a stock certificate evidencing such shares of Common Stock within ten business days following the Automatic Conversion Date. For the purpose of determining the applicable Conversion Price under Section 4(E), the Automatic Conversion Date shall be deemed the Conversion Date.
(C) If, either at the time authorizedthat the Corporation received a Conversion Notice or on the Automatic Conversion Date, unissued the aggregate number of shares of Common Stock issuable pursuant to such Conversion Notice and unreserved for all purposesother Conversion Notices received at that time (the "Subject Conversion Notices"), when added to the aggregate number of shares of Common Stock (a) previously issued pursuant to the conversion of shares of Series A-1 Preferred Stock and (b) issuable upon conversion of all remaining outstanding shares of Series A-1 Preferred Stock (determining such number as if such Series A-1 Preferred Stock were converted as of the Conversion Date relating to such Conversion Notice), including Series A-1 Preferred Stock issuable (i) upon exercise by the Corporation of its right to require ▇▇▇▇▇▇▇▇ International Limited to purchase additional shares of Series A-1 Preferred and (ii) upon exercise by ▇▇▇▇▇▇▇▇ of its right to require the Company to issue and sell to ▇▇▇▇▇▇▇▇ additional shares of Series A-1 Preferred, in each case in accordance with the terms of the Subscription Agreement, would exceed the number of shares equal to 19.9% of the total number of shares of Common Stock outstanding (adjusted to reflect any split, subdivision, combination, or held as treasury stockconsolidation of the Common Stock, is insufficient whether by reclassification, distribution of a dividend with respect to pay interest hereunder the outstanding Common Stock payable in shares of Common Stock;
, or otherwise, or any recapitalization of the Common Stock) on August 12, 1997 (2the "19.9% Limit") and such circumstance would require the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale approval of the holders of the Common Stock pursuant to an effective Underlying Shares Registration Statement and the listing requirements or rules of the Nasdaq National Market (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) or such stock exchange or other interdealer quotation system on which the Common Stock is not then listed or quoted for trading on quoted), then the OTC or on a Subsequent Market;
(4) number of shares of Series A-1 Preferred Stock identified in the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such Subject Conversion Notices that, if converted into shares of Common Stock Stock, would result in a violation of Sections 4(a)(iiequal or exceed the 19.9% Limit (the "Excess Preferred Shares"), then, the Company may shall not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted unless and until the stockholder approval referred to in Section 5 (the "Required Consent") is obtained or is no longer required. The Excess Preferred Shares will be allocated among the holders delivering Subject Conversion Notices on such Conversion Date and (b) a PRO RATA basis based on the product of (x) the quotient obtained by dividing .12 by 360 and (y) the relative number of days for which shares of Series A-1 Preferred Stock identified in each such principal amount was outstanding.
(C) This Debenture Subject Conversion Notice. Any Excess Preferred Shares shall not be convertible converted into shares of Common Stock at until the option later of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which the Required Consent is obtained and the Corporation received a subsequent Conversion Notice is delivered is the "Conversion Datewith respect thereto." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given,
(D) Shares of Series A-1 Preferred Stock shall be irrevocableconvertible only into the Maximum Number of shares of Common Stock. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount The "Maximum Number" is equal to the applicable conversion, which shall be evidenced by notations made in sum of 13,674,500 plus the Conversion NoticeConvertible Number. The Holder "Convertible Number" is initially zero and thereafter may be increased upon expiration of a 65 day period (the Company shall maintain records showing "Notice Period") after the principal amount converted and holder delivers a notice (a"65 Day Notice") to the date Issuer designating an aggregate number of such conversions. In the event shares of any dispute or discrepancy, the records Common Stock in excess of the Holder shall be controlling and determinative in the absence of manifest error13,674,500 which will become convertible.
Appears in 1 contract
Sources: Exchange Agreement (Informix Corp)
Conversion. (A) This Debenture shall be convertible into shares of Common Stock at the option of the HolderThe Holder may, in whole or in part its sole discretion, at any time and from time to time, time on or after the Original Issue Date date hereof, and in each case when any principal and/or accrued interest remains unpaid on this Note, convert the unpaid principal amount of and accrued but unpaid interest (subject to through the limitations date of such conversion) on conversion set forth this Note in Section 4(a)(ii) hereofwhole or in part into fully paid and nonassessable ordinary shares, par value NIS 0.001 of the Company (the “Ordinary Shares”). The Subject to Section 8 below, the number of shares of Common Stock issuable upon a conversion hereunder Ordinary Shares into which this Note may be converted shall be determined by adding dividing the sum of (i) the quotient obtained by dividing (x) the outstanding unpaid principal amount of and accrued but unpaid interest on this Debenture Note to be converted and (y) by the Conversion Price (as defined hereindetermined from time to time as set forth below). For purposes hereof, “Conversion Price” shall mean $1.50, subject to adjustment in accordance with the provisions of Section 8 below. In addition, (a) if the Holder makes a demand for payment hereunder pursuant to Section 3 above or (b) if this Note becomes due on the Outside Maturity Date (because the Holder has not made an earlier demand for payment of the entire amount due under this Note and this Note has not been converted into Ordinary Shares prior to the Outside Maturity Date), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to right, exercisable (i) within three (3) Business Days following the terms hereof, subsection receipt by the Company of the Demand Notice or (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
no later than three (3) Business Days prior to the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Outside Maturity Date, an amount as applicable, in cash equal lieu of making such payment, to convert the product of (a) the outstanding entire principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this DebentureNote (or, if less, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made specified in the Demand Notice) into Ordinary Shares, at the Conversion Notice. The Holder and Price; provided, however, that the Company shall maintain records showing not have the principal amount converted and the date of such conversions. In right to convert this Note into Ordinary Shares as provided herein in the event of any dispute an Insolvency of the Company. For purposes hereof “Insolvency” shall mean if the Company generally fails to pay debts as they become due, or discrepancyadmits in writing its inability to pay debts as they become due; applies for, or consents to, the records appointment of a trustee, receiver, sequestrator, or other custodian for it, or any of its property, or makes a general assignment for the Holder shall be controlling and determinative benefit of creditors; consents or acquiesces, permits or suffers to exist the involuntary appointment of a trustee, receiver, sequestrator, or other custodian for it, or for a substantial part of its property; permits or suffers to exist (unless dismissed within thirty (30) calendar days) the involuntary commencement of, or voluntarily commences any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any bankruptcy or insolvency laws, or permits or suffers to exist the involuntary commencement of, or voluntarily commences any dissolution, winding up or liquidation proceeding; or takes any action authorizing, or in furtherance of, the absence of manifest errorforegoing.
Appears in 1 contract
Sources: Convertible Demand Note (Arel Communications & Software LTD)
Conversion. (Ai) This Debenture shall be convertible into shares In the event the Company, directly or indirectly through a Subsidiary, consummates, while the Loan remains outstanding, a transaction that results in the Company, directly or indirectly through a Subsidiary, owning all or substantially all of Common Stock the common equity interests of another Person (a “Qualified Transaction”), then, during the period commencing on the date of the closing of such Qualified Transaction and ending on December 31, 2021 (the “Conversion Exercise Period”), up to 100% of the aggregate outstanding principal amount of the Loan, together with all accrued and unpaid interest thereon, shall, at the option of the HolderBuyer, in whole or in part convert into shares of the Company’s common stock at any time a conversion price between $10.00 and from time $30.00 per share as determined pursuant to time, after this Section 2(e) (the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof“Conversion Price”). The number Company shall provide written notice to the Buyer promptly after the closing of a Qualified Transaction.
(ii) If the Buyer elects to convert a portion of the Loan pursuant to Section 2(e)(i), the Buyer shall provide written notice to the Company notifying the Company of the Buyer’s desire to convert a portion of the Loan (the “Initial Conversion Notice”). Upon receipt of an Initial Conversion Notice, the Company shall promptly retain an independent firm to provide a valuation of the shares of Common Stock issuable upon a conversion hereunder common stock of the Company as of the date of the Conversion Notification (or such earlier or later date as agreed by the Buyer and the Company) (the “Valuation”) which Valuation shall determine the Conversion Price; provided, however, that (a) if the Valuation is less than $10 per share, then the Conversion Price shall be determined equal to $10 per share and (b) if the Valuation is greater than $30 per share, then the Conversion Price shall be equal to $30 per share. The Company shall provide to the Buyer a copy of the Valuation and the determination of the Conversion Price promptly after completion of the Valuation (the “Valuation Notice”).
(iii) The Buyer shall have ten (10) Business Days (or such later date agreed to by adding the sum Company) after effective receipt of the Valuation Notice to provide the Company notice of the Buyer’s desire to convert a portion of the Loan at the Conversion Price specified in the Valuation Notice (i) the quotient obtained by dividing (x) “Final Conversion Notice”). The Final Conversion Notice shall specify the outstanding principal amount of this Debenture the Loan to be converted converted, together with all accrued and unpaid interest thereon, and the date on which such conversion is expected to occur (y) the “Conversion Price (as defined hereinDate”), which shall not be more than ten (10) Business Days (or such later date agreed to by the Company and (iithe Buyer) after the amount equal date of the Final Conversion Notice. On or prior to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected agrees to pay the interest due on a Conversion Date in cash pursuant deliver to the terms hereof, subsection (ii) shall not be used in Buyer an amended and restated Note reflecting the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the reduced outstanding principal amount of the Debentures Note and the Buyer agrees to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering deliver to the Company any documentation reasonably required by the Company to consummate such conversion (including the original of the Note (or a completed notice substantially to the effect that the original Note has been lost, stolen or destroyed) for cancellation.”
3.3 All references in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture Purchase and all accrued and unpaid interest thereon subsequent Loan Agreement to the conversion at issue“Agreement” shall refer to the Purchase and Loan Agreement as amended hereby. The date on which a Conversion Notice To the extent the terms of the Note is delivered is inconsistent with the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debentureterms hereof, the Holder Note is not be required hereby modified to physically surrender this Debenture to reflect the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest errorterms hereof.
Appears in 1 contract
Sources: Securities Purchase, Loan and Security Agreement (Capstone Holding Corp.)
Conversion. (Aa) This Debenture Conversion of the Shares may be made at the Conversion Price after effectiveness of registration under the Securities Act of the Underlying Shares, or at such time as the Underlying Shares may be sold without registration under the Securities Act in compliance with Rule 144 promulgated under the Securities Act, as follows: 0 - 30 days - One-third of investment 31 - 60 days - Two-thirds of investment After 61 days - 100% of investment
(b) Subject to the Corporation's right to redeem the Shares in certain instances as described in the Certificate of Designation, any and all Shares outstanding on the third anniversary of the Closing Date shall be convertible automatically convert into shares of Common Stock at as provided in the option Certificate of Designation.
(c) Purchaser shall convert the HolderShares to Common Stock, in whole or in part at any time by telecopying an executed and from time to timecompleted Notice of Conversion (in the form annexed hereto as Exhibit C, after the Original Issue Date (subject "Notice of Conversion") to the limitations Company and delivering the original Notice of Conversion and the certificate representing the Shares to be converted to the Company within three (3) business days of exercise. Each date on conversion set forth which a Notice of Conversion is telecopied to and received by the Company in Section 4(a)(ii) hereof)accordance with the provisions hereof shall be deemed a Conversion Date. The number of shares of Company will transmit the certificates representing the Common Stock issuable upon a conversion hereunder of all or any part of the Shares (together with the certificates representing portions of the Shares not so converted) to the Purchaser within three (3) business days after the Company has received the original Notice of Conversion and the certificate evidencing the Shares being so converted. The Notice of Conversion and certificate representing the Shares being converted shall be determined delivered to the Company at the address provided in Section 11 hereof.
(d) In the event Purchaser converts the Shares subject to the "ceiling" formula of $2.25 per share on the first one-third of the Shares converted; $2.50 per share on the second one-third of the Shares converted; and $2.75 per share on the third one-third of the Shares converted, Purchaser agrees to convert at $2.25 first, $2.50 next and $2.75 last. In the event that the Shares are not converted within ten (10) business days of receipt by adding the sum Company of (i) a valid Conversion Notice and certificates representing the quotient obtained by dividing (x) the outstanding principal amount of this Debenture Shares to be converted and (ysuch date of receipt referred to as the "Applicable Date") due to the failure of the Company to timely process the Conversion Price (Notice, as defined herein)opposed to the failure to timely process by the transfer agent, and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereofPurchaser, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained hereinby wire transfer, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable liquidated damages for such conversion (including any interest payable in shares) (x) are failure and not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Datepenalty, an amount in cash equal to one (1%) percent per day of the product purchase price of the Shares to be converted which shall run from the Applicable Date; provided, however, that the liquidated damages for a failure to deliver certificates of Common Stock shall equal only 15% per month of the purchase price of the Shares to be converted for the first two months from the Applicable Date that the certificates of Common Stock are not delivered, and 25% per month for each month thereafter, if both of the following conditions are satisfied by the Company: (ai) the outstanding principal failure to deliver certificates of Common Stock is the result of a lack of available authorized shares of Common Stock, and (ii) the Company commences, within 15 business days after the Applicable Date, the process to obtain stockholder approval to amend its Certificate of Incorporation to increase the number of authorized shares of Common Stock by an amount sufficient to permit conversion of all shares of Convertible Preferred Stock then outstanding; provided, further, in no event shall the liquidated damages paid hereunder exceed the fair market value of the Debentures shares of Common Stock underlying the Shares to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at the option of the Holder, in whole or in part at any time and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Applicable Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Conversion. The Holder may convert this Warrant (A) This Debenture shall be convertible into shares of Common Stock at the option of the Holder---- ---------- "Conversion Right"), in whole or in part at any time and from time to timepart, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of into the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything of the Company calculated pursuant to the contrary contained herein, if on any Conversion Date:
following formula by surrendering this Warrant (1with the notice of exercise form attached hereto as Exhibit C duly executed) at the principal office of the Company specifying the number of shares of Common Stock at of the time authorizedCompany, unissued and unreserved for all purposes, or held as treasury stock, is insufficient the rights to pay interest hereunder in shares purchase which the Holder desires to convert: Y (A - B) --------- X = A where: X = the number of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to be issued to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) Holder; Y = the number of days for which such principal amount was outstanding.
(C) This Debenture shall be convertible into shares of Common Stock at subject to this Warrant for which the option Conversion Right is being exercised; A = the Fair Market Value of one share of Common Stock (as calculated in Section 1.5 hereof); B = the Purchase Price The Company agrees that the shares so converted shall be deemed to be issued to the holder hereof as the record owner of such shares as of the Holder, in whole or in part at any time and from time to time, after close of business on the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder Warrant shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversionsbeen surrendered as aforesaid. In the event of any dispute conversion of this Warrant, certificates for the shares of stock so converted shall be delivered to the holder hereof within 15 days thereafter and, unless this Warrant has been fully converted or discrepancyexpired, a new Warrant representing the records portion of the Holder shares, if any, with respect to which this Warrant shall be controlling and determinative in not then have been converted, shall also bc issued to the absence of manifest errorholder hereof within such 15 day period.
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Conversion. (A) This Debenture shall be convertible Subject to the best price guarantees and anti-dilutive rights set forth below, the CFST hereby agrees to immediately convert all of its Class A Bonds into shares of Colmena's Common Stock at the option of the HolderStock, in whole or accordance with their terms, which Colmena hereby represents will result in part at any time and from time to time, after the Original Issue Date (subject issuance to the limitations on conversion set forth in Section 4(a)(ii) hereof). The number of shares of Common Stock issuable upon a conversion hereunder shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1) the quotient obtained by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation CFST of the number of shares of Common Stock issuable upon Colmena's common stock set forth in Exhibit 2 (A) annexed hereto and made a part hereof, the conversion hereunderbeing effected without registration under the Securities Act or the Florida Act, based on the exemption from registration provided by Section 4(6) of the Securities Act and Section 517.061(11) of the Florida Act.
(B) Notwithstanding anything Subject to the contrary contained hereinbest price guarantees and anti-dilutive rights set forth below, if on any Conversion Date:
(1) the number of CFST hereby converts the Colmena Debt into shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Colmena Common Stock;
, at a conversion price of $0.01 per share, as set forth below on Exhibit 2 (2) B), the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold transaction being effected without volume restrictions pursuant to Rule 144(k) promulgated registration under the Securities Act (as defined in Section 6);
(3) or the Common Stock is not listed or quoted for trading Florida Act, based on the OTC or on a Subsequent Market;
(4exemption from registration provided by Section 4(6) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date Securities Act and (bSection 517.061(11) of the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingFlorida Act.
(C) This Debenture shall be convertible into shares of Common Stock at In consideration for the option agreement by the CFST to accelerated conversion of the Holder, in whole or in part at any time Class A Bonds and from time to time, after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date of the Colmena Debt to Colmena common stock, which will result in the issuance of a materially smaller quantity of Colmena common stock to the CFST than would have otherwise been issuable based on which current Colmena business plans, Colmena hereby irrevocably covenants and agrees, as a Conversion Notice is delivered is material inducement to the entry into this Agreement by the CFST, that all of the shares issuable to the CFST pursuant to the terms of this Agreement, including, without limitation, the shares to be issued in exchange for conversion of the Colmena Debt and to be issued on conversion of the Class A Bonds (the "Conversion Date." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(bCovered Shares"), each Conversion Notice, once givenwhether or not then still owned by the CFST, shall be irrevocable. Conversions hereunder shall have increased by the effect issuance of lowering additional shares of Colmena common stock to the outstanding principal amount CFST, to reflect the issuance of any common stock or common stock purchase rights at a price of less than $0.01 per share (in cash or in the net tangible book value in accordance with GAAP of any assets or services paid therefor) during the 730 days following the execution of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversionAgreement, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.as follows:
Appears in 1 contract
Sources: Conversion Agreement (Colmena Corp)
Conversion. (A) This Debenture Subject to the provisions of this Article III, at the Effective Time, by virtue of the Merger and without any action on the part of the shareholders of ABI or Murd▇▇▇, ▇▇e shares of the constituent corporations shall be convertible into converted as follows:
(a) Except for shares of Common Murd▇▇▇ ▇▇▇mon Stock at issued and outstanding immediately prior to the option of the HolderEffective Time as to which dissenters' rights have been perfected and not withdrawn, in whole or in part at any time and from time to time, after the Original Issue Date (subject to Section 3.4 relating to fractional shares, each share of Murd▇▇▇ ▇▇▇mon Stock (excluding shares to be cancelled pursuant to Section 3.3 of this Agreement) issued and
(b) If the limitations on conversion set forth in Section 4(a)(ii) hereof). The number Designated Price of shares of ABI Common Stock issuable upon a conversion hereunder Shares is less than $11.00 and the Closing Equity is at least $5,000,000, then the Exchange Ratio shall be determined by adding increased to equal the sum of (i) quotient, rounded to the quotient obtained by dividing third decimal point, of: (x) the outstanding principal amount product of this Debenture to be converted $11.00 and the Exchange Ratio divided by (y) the Conversion Designated Price. If the Designated Price shall be less than $10.00, then ABI and Murd▇▇▇ ▇▇▇ll in good faith attempt to negotiate a mutually acceptable Merger Consideration for the Murd▇▇▇ ▇▇▇mon Stock; provided, however, that if a mutually agreed upon Merger Consideration is not negotiated within four days following the Determination Date, then Murd▇▇▇ ▇▇▇ terminate this Agreement pursuant to Section 10.1(i) of this Agreement. If the Closing Equity shall be less than $5,000,000, then the Exchange Ratio shall be adjusted as follows: (as defined herein)i) if the Designated Price is $11.00 or more, and then the Exchange Ratio shall be decreased to equal the quotient, rounded to the third decimal point, of (A) the quotient of [Closing Equity multiplied by 2.25, divided by 385,015] divided by (B) 12.169, or (ii) if the amount Designated Price is less than $11.00, then the Exchange Ratio shall be adjusted to equal the quotient, rounded to (I) the product third decimal point, of (x) the outstanding principal amount of this Debenture to be converted and (y) the product of (1A) the quotient obtained of [Closing Equity multiplied by dividing .12 by 360 and (2) the number of days for which such principal amount was outstanding2.25, divided by 385,015] divided by (IIB) 11.00. If the Conversion Price on Closing Equity shall be less than $4,875,000, then ABI and Murd▇▇▇ ▇▇▇ll in good faith attempt to negotiate a mutually acceptable Merger Consideration for the Conversion DateMurd▇▇▇ ▇▇▇mon Stock; provided, providedhowever, that if a mutually agreed upon Merger Consideration is not negotiated within four days following the Company shall have timely elected to pay determination of Closing Equity, then ABI may terminate the interest due on a Conversion Date in cash Agreement pursuant to the terms hereof, subsection (iiSection 10.1(j) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunderthis Agreement.
(Bc) Notwithstanding anything Each of the Surviving Corporation common shares, $1.175 par value per share, issued and outstanding immediately prior to the contrary contained herein, if on any Conversion Date:
(1) Effective Time shall remain issued and outstanding from and after the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of (a) the outstanding principal amount of the Debentures to be converted on such Conversion Date and (b) the product of (x) the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstandingEffective Time.
(Cd) This Debenture shall be convertible into shares of Common Stock at the option Each of the Holder, in whole or in part at any time ABI Common Shares issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding from time to time, and after the Original Issue Date (subject to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture and all accrued and unpaid interest thereon subsequent to the conversion at issue. The date on which a Conversion Notice is delivered is the "Conversion DateEffective Time." Unless the Holder is converting the entire principal amount outstanding under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company in order to effect conversions. Subject to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Debenture plus all accrued and unpaid interest thereon in an amount equal to the applicable conversion, which shall be evidenced by notations made in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date of such conversions. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
Appears in 1 contract
Conversion. (A) This Debenture shall be convertible into shares 6.1 At the Borrower’s election, in lieu of Common Stock at repayment, the option amount of the Holderdrawn down Loan (including the principal thereof and any accrued but unpaid interest thereon) may be converted, in whole or but not in part at any time except as provided in Clause 6.6, into a number of fully paid and from time non-assessable Shares, subject to timeand determined as provided in Clause 6.3 below, after as of the Original Issue Date (date of, and in all cases subject to the limitations on conversion set forth consummation of, a Qualified Offering provided, that no Event of Default shall at the time exist and be continuing.
6.2 In order to elect to convert the Loan into Shares in Section 4(a)(iiconnection with a Qualified Offering in accordance with this Clause 6, the Borrower shall give Lender notice of such election not less than five (5) hereof). The Business Days prior to the anticipated Conversion Date, specifying the anticipated Conversion Date, the anticipated aggregate proceeds to the Borrower and the other anticipated terms of the Qualified Offering.
6.3 Subject to Clause 6.6, the number of shares of Common Stock Shares or Units issuable upon a conversion hereunder of the Loan shall be determined by adding the sum of (i) the quotient obtained by dividing (x) the outstanding principal amount of this Debenture to be converted and (y) the Conversion Price (as defined herein), and (ii) the amount equal to (I) the product of (x) the outstanding principal amount of this Debenture to be converted and the Loan, plus any accrued but unpaid interest thereon, divided by (y) the product lowest price per Share or Unit paid by investors for Shares or Units in the Qualified Offering before deducting underwriting commissions and discounts, placement agent commissions and fees, and other expenses of (1) the quotient obtained by dividing .12 by 360 and (2) Qualified Offering. In lieu of any fractional Share or Unit to which the number of days for which such principal amount was outstandingLender would otherwise be entitled, divided by (II) the Conversion Price on the Conversion Date, provided, that if the Company shall have timely elected to pay the interest due on a Conversion Date in cash pursuant to the terms hereof, subsection (ii) shall not be used in the calculation of the number of shares of Common Stock issuable upon a conversion hereunder.
(B) Notwithstanding anything to the contrary contained herein, if on any Conversion Date:
(1) the number of shares of Common Stock at the time authorized, unissued and unreserved for all purposes, or held as treasury stock, is insufficient to pay interest hereunder in shares of Common Stock;
(2) the Underlying Shares issuable for such conversion (including any interest payable in shares) (x) are not registered for resale pursuant to an effective Underlying Shares Registration Statement and (y) may not be sold without volume restrictions pursuant to Rule 144(k) promulgated under the Securities Act (as defined in Section 6);
(3) the Common Stock is not listed or quoted for trading on the OTC or on a Subsequent Market;
(4) the Company has failed to timely satisfy its conversion obligations hereunder; or
(5) the issuance of such shares of Common Stock would result in a violation of Sections 4(a)(ii), then, the Company may not pay interest in kind and must pay interest in cash by delivering, within three Trading Days of each applicable Conversion Date, an amount in cash equal to the product of such fraction multiplied by the price of such Share or Unit in the Qualified Offering.
6.4 Subject to Clause 6.6, upon the consummation of a Qualified Offering, in the event that the Borrower does not elect to convert the Loan into Shares in accordance with Clause 6.1: (a) the outstanding principal amount of Availability Period shall terminate and the Debentures Lender will not be required to be converted on such Conversion Date make any further Advances; and (b) upon the product of Repayment Date (x) or any other date on which the quotient obtained by dividing .12 by 360 and (y) the number of days for which such principal amount was outstanding.
(C) This Debenture shall Loan is to be convertible into shares of Common Stock at the option of the Holderrepaid, in whole or in part at part), the Lender shall have the right to elect to receive, in its sole discretion, in lieu of any time and from time to timecash repayment of the Loan, after a number of Shares (or Units, if Units are sold in the Original Issue Date (subject Qualified Offering) equal to the limitations on conversion set forth in Section 4(a)(ii) hereof). The Holder shall effect conversions by delivering to the Company a completed notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"). The Conversion Notice shall set forth the remaining principal amount of this Debenture the Loan being so repaid, divided by the lowest price per Share or Unit paid by investors for Shares or Units in the Qualified Offering before deducting underwriting commissions and all accrued discounts, placement agent commissions and unpaid interest thereon subsequent fees, and other expenses of the Qualified Offering. In lieu of any fractional Share or Unit to which the Lender would otherwise be entitled, the Borrower shall pay cash equal to the conversion at issueproduct of such fraction multiplied by the price of such Share or Unit in the Qualified Offering. The date on which a Conversion Notice is delivered is Borrower shall give the "Conversion Date." Unless Lender written notice five (5) Business Days prior to making any repayment of the Holder is converting the entire principal amount outstanding Loan under this Debenture, the Holder is not be required to physically surrender this Debenture to the Company Agreement in order to effect conversions. Subject permit the Lender to Section 4(b), each Conversion Notice, once given, shall be irrevocable. Conversions hereunder shall have make such an election.
6.5 Upon the effect conversion of lowering the outstanding principal amount of this Debenture plus all accrued Loan and unpaid interest thereon in an amount equal the issuance to the applicable conversionLender of the Shares or Units in accordance in accordance with Clause 6, which shall be evidenced by notations made and upon delivery to the Lender of a valid share certificate for the Shares and other securities comprising Units if Units are issued, (or in the Conversion Notice. The Holder and the Company shall maintain records showing the principal amount converted and the date lieu of such conversions. In the event certificates, evidence of any dispute or discrepancy, direct registration in the records of the Holder transfer agent in the case of the Shares and records of Borrower in the case of other securities comprising Units), this Agreement shall terminate and the Borrower shall be controlling forever released from its obligations under this Agreement, except to the extent that any obligations of the Borrower under Clauses 7 (Tax), 9 (Liability), 10 (Payments) and determinative 13 (Miscellaneous) shall survive such termination and remain be valid and effective.
6.6 If under the rules of the NYSE American or any other stock exchange on which the Shares are listed (an “Applicable Exchange”), approval by the stockholders of the Borrower would be required in connection with the issuance of Shares or Units upon any conversion under this Clause 6, then unless and until such stockholder approval has been obtained, the maximum amount of the Loan (including principal and any accrued interest) that may be converted into Shares or Units shall not exceed an amount that would result in the absence number of manifest errorShares (including Shares issued separately or as a part of a Unit) so issued (together with Shares issued upon the consummation of a Qualified Offering in the case of a conversion under Clause 6.1 or that is otherwise deemed by the Applicable Exchange to be in connection with the consummation of the Qualified Offering) exceeding 19.9% of the number of Shares outstanding immediately before such conversion (and before consummation of the Qualified Offering in the case of a conversion under Clause 6.1 or that is otherwise deemed by the Applicable Exchange to be in connection with the consummation of a Qualified Offering).
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