Determination of Amount Sample Clauses

Determination of Amount. In lieu of the payment of the Exercise Price in cash, the Holder shall have the right (but not the obligation) to convert this Warrant, in whole or in part, into Common Stock ("Conversion Right"), as follows: upon exercise of the Conversion Right, the Company shall deliver to the Holder (without payment by the Holder of any of the Exercise Price) that number of shares of Common Stock equal to the quotient obtained by dividing (x) the "Value" (as defined below) of the portion of the Warrant being converted at the time the Conversion Right is exercised by (y) the Market Price. The "Value" of the portion of the Warrant being converted shall equal the remainder derived from subtracting (a) the Exercise Price multiplied by the number of shares of Common Stock being converted from (b) the Market Price of the Common Stock multiplied by the number of shares of Common Stock being converted. As used herein, the term "Market Price" at any date shall be deemed to be the last reported sale price of the Common Stock on such date, or, in case no such reported sale takes place on such day, the average of the last reported sale prices for the immediately preceding three trading days, in either case as officially reported by the principal securities exchange on which the Common Stock is listed or admitted to trading, or, if the Common Stock is not listed or admitted to trading on any national securities exchange or if any such exchange on which the Common Stock is listed is not its principal trading market, the last reported sale price as furnished by the National Association of Securities Dealers, Inc. ("NASD") through the Nasdaq National Market or SmallCap Market, or, if applicable, the OTC Bulletin Board, or if the Common Stock is not listed or admitted to trading on any of the foregoing markets, or similar organization, as determined in good faith by resolution of the Board of Directors of the Company, based on the best information available to it.
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Determination of Amount. Subject to the provisions of Section 3.3.4.3, all determinations required to be made under this Agreement, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by an accounting firm (the “Accounting Firm”), which shall provide detailed supporting calculations both to NMHC and the Executive within 15 business days of the receipt of notice from the Executive that there has been or the Executive reasonably believes there may have been a Payment, or such earlier time as is requested by NMHC. The Accounting Firm shall be jointly selected by NMHC and the Executive and shall not, during the two years preceding the date of its selection, have acted in any way on behalf of NMHC or its affiliated companies. If NMHC and the Executive cannot agree on the firm to serve as the Accounting Firm, then NMHC and the Executive shall each select an accounting firm and those two firms shall jointly select an accounting firm to serve as the Accounting Firm. All fees and expenses of the Accounting Firm shall be borne solely by NMHC. Any Gross-Up Payment, as determined pursuant to this Agreement, shall be paid by NMHC to the Executive as provided in Section 3.3.4.6. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion of its determination. Any determination by the Accounting Firm shall be binding upon NMHC and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by NMHC should have been made (the “Underpayment”), consistent with the calculations required to be made hereunder. In the event that NMHC exhausts its remedies pursuant to Section 3.3.4.3 and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be paid by NMHC to or for the benefit of the Executive, together with interest at the rate provided in section 1274(b)(2)(B) of the Code, at the time provided in Section 3.3.4.6.
Determination of Amount. In lieu of the payment of the Exercise Price multiplied by the number of Units for which this Purchase Warrant is exercisable (and in lieu of being entitled to receive shares of Series A Preferred Stock and Warrants) in the manner required by Section 2.1, and subject to Section 6.1 hereof, the Holder shall have the right (but not the obligation) to convert any exercisable but unexercised portion of this Purchase Warrant into Units (“Cashless Exercise Right”) as follows: upon exercise of the Cashless Exercise Right, the Company shall deliver to the Holder (without payment by the Holder of any of the Exercise Price in cash) that number of Units (in the form of the Delivered Securities) equal to the number of Units to be exercised multiplied by the quotient obtained by dividing (x) the “Value” (as defined below) of the portion of the Purchase Warrant being converted by (y) the Current Market Value (as defined below). The “Value” of the portion of the Purchase Warrant being converted shall equal the remainder derived from subtracting (a) the Exercise Price from (b) the Current Market Value of a Unit. As used herein, the term “Current Market Value” per Unit at any date means: (A) in the event that the Common Stock is trading on any of the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the NYSE American, the New York Stock Exchange, OTCQB or OTCQX (each a “Trading Market”), the aggregate of (i) the product of (x) the Current Market Price of the Common Stock and (y) the number of shares of Common Stock underlying one share of Series A Preferred Stock included in the Units plus (ii) the remainder derived from subtracting (x) the exercise price of the Warrants multiplied by the number of shares of Common Stock issuable upon conversion of the Series A Preferred Stock issuable upon exercise of one of the Warrants underlying one Unit from (y) the product of (aa) the Current Market Price of the Common Stock multiplied by (bb) the number of shares of Common Stock issuable upon conversion of the Series A Preferred Stock issuable upon exercise of the Warrants included in each such Unit; or (B) in the event that Company’s Common Stock is not trading on a Trading Market, the aggregate of (i) the product of (x) the Current Market Price of the Series A Preferred Stock and (y) the number of shares of Series A Preferred Stock underlying one Unit plus the aggregate of (ii) the product of (x) the Current Market Price of the Warrants and (y) the ...
Determination of Amount a) In calculating any Loss ----------------------- or Expense there shall be deducted any insurance recovery in respect thereof. Buyer and Parent agree that, for purposes of computing the amount of any indemnification payment under this Article XI, the indemnification payment ---------- otherwise payable shall be increased by an amount sufficient to compensate the indemnified party for actual net increases in Taxes payable by the indemnified party as a result of the indemnification payment being included in taxable income; provided, Buyer and Parent agree to treat (and to cause each Buyer -------- Group Member or Parent Group Member, respectively, to treat) each indemnification payment (including any payment made pursuant to this Section ------- 11.4) as an adjustment to the Purchase Price for all Tax purposes (unless, with ---- respect to the recipient of the indemnification payment, such reporting position is later disallowed in a final determination in any administrative or court proceeding). If Parent is required to indemnify a Buyer Group Member pursuant to the provisions of Section 11.1, and the cost, expense or liability for which ------------ the indemnification is sought under Section 11.1 could provide any Buyer Group ------------ Member with a Tax benefit, Buyer shall pay Parent the actual Tax benefit realized by such Buyer Group Member. The Tax benefit shall be determined by Buyer (with such determination to be evidenced by an officer's certificate delivered by Buyer to Parent not later than thirty (30) days after the day the Tax Benefit is realized by any Buyer Group Member) and, at the request of Parent (and at Parent's expense), shall be verified by Buyer's accounting firm. Such determination (and any such verification) shall be based on the position taken by Buyer Group Members and their Affiliates on their Tax Returns. The amount of any Tax benefit shall be paid by Buyer to Parent not later than sixty (60) days after the day such Tax benefit is actually realized by any Buyer Group Member; provided, that in connection with the initial computation of the -------- indemnification payment relating to a cost, expense or liability that could provide Tax benefits to any Buyer Group Member, Buyer and Parent shall endeavor in good faith to arrive at a reasonably acceptable estimate of the present value of all such actual Tax Benefits provided or to be provided to all Buyer Group Members, in which case Buyer shall pay to Parent such estimated amount...
Determination of Amount. For purposes of determining the applicable currency equivalent or other rate of exchange under this Section 22.12, such amount shall include any premium and costs payable in connection with the purchase of the Obligation Currency.
Determination of Amount. In lieu of the payment of the Warrant Price multiplied by the number of shares of Common Stock for which Representative's Warrants are exercisable under Section 3.3.1, and in lieu of being entitled to receive shares in the manner required by Section 3.3.2, a registered holder of Representative's Warrants shall have the right (but not the obligation) to convert any exercisable but unexercised portion of said Representative's Warrants into shares of Common Stock ("Cashless Exercise Right") as follows: Upon exercise of the Cashless Exercise Right, the Company shall deliver to the registered holder (without payment by the holder of any of the Warrant Price in cash) that number of shares of Common Stock equal to the quotient obtained by dividing (x) the "Value" (as defined below) of the portion of the Representative's Warrants being converted by (y) the "Current Market Price" (as defined below) of a share of Common Stock. The "Value" of the portion of the Representative's Warrants being converted shall equal the remainder derived from subtracting (a) (i) the Warrant Price multiplied by (ii) the number of shares of Common Stock underlying the portion of the Representative's Warrants being converted, from (b) (i) the Current Market Price of a share of Common Stock multiplied by (ii) the number of shares of Common Stock underlying the portion of the Representative's Warrants being converted. The "Current Market Price" of a share of Common Stock on any day shall mean
Determination of Amount. Subject to the provisions of paragraph 3, below, all determinations required to be made under this Exhibit B, including whether and when an Excise Tax or a Gross-Up Payment is required, the amount of the Excise Tax and Gross-Up Payment and the assumptions to be used in arriving at such determinations, will be made, at our option, by Dole’s independent auditors or a nationally recognized executive compensation consulting firm (the “Accounting Firm”), which will provide detailed supporting calculations both to Dole and you within 15 business days after the receipt of notice from you that there has been a Payment, or such earlier time as is requested by Dole. If the Accounting Firm is serving as accountant or auditor for the Person effecting the Change of Control, Dole will appoint another nationally recognized accounting firm to make these required determinations (which accounting firm will then be referred to as the Accounting Firm). All fees and expenses of the Accounting Firm will be borne solely by Dole. Any Gross-Up Payment, as determined under this Exhibit B, will be paid by Dole to you within five days after our receipt of the Accounting Firm’s determination. If the Accounting Firm determines that no Excise Tax is payable by you, it will furnish you with a written opinion that failure to report the Excise Tax on your applicable federal income tax return will not result in the imposition of a negligence or other penalty. Any determination by the Accounting Firm will be binding upon Dole and you. If, as a result of a federal tax audit, the Internal Revenue Service asserts that the Excise Tax determined by the Accounting Firm in its calculation of the Gross Up Payment is understated, and thereby the Gross Up Payment made to you may also be understated (“Underpayment”), then you must notify Dole as provided in paragraph 3 below, and Dole has the right to contest the asserted Excise Tax underpayment as provided in paragraph 3. In the event that Dole exhausts its remedies under paragraph 3, below, and you thereafter are required to make an additional Excise Tax payment, the Accounting Firm will determine the amount of the Underpayment that has occurred and any such Underpayment will be promptly paid by Dole to you or for your benefit.
Determination of Amount. (a) In calculating any Loss or Expense, such amounts shall be calculated on an After-Tax Basis and shall be net of any third-party insurance, indemnification or other proceeds (determined net of recovery costs) which have been recovered by the Indemnified Party under any insurance policy or other contract, agreement or undertaking in connection with the facts giving rise to the right of indemnification. The Indemnified Party shall use commercially reasonable efforts to recover third-party insurance, indemnification or other proceeds that may be recoverable. If the Indemnified Party receives any such recovery for any matter with respect to which it has previously been indemnified hereunder, the amount of such recovery shall promptly be transferred to the Indemnitor.(b) After the giving of any Claim Notice pursuant to Section 11.3, the amount of indemnification to which an Indemnified Party shall be entitled under this Article XI shall be determined: (i) by the written agreement between the Indemnified Party and the Indemnitor; (ii) by a final judgment or decree of any court of competent jurisdiction; or (iii) by any other means to which the Indemnified Party and the Indemnitor shall agree. The judgment or decree of a court shall be deemed final when the time for appeal, if any, shall have expired and no appeal shall have been taken or when all appeals taken shall have been finally determined.
Determination of Amount. In lieu of payment of the Warrant Price, the Company shall have the right (but not the obligation) upon notice to all Registered Holders and to the Warrant Agent following a notice of redemption referred to in Section 6.2 to require all Registered Holders to convert any exercisable but unexercised Warrants into shares of Common Stock (the “Conversion Right”) as follows: upon the Company’s exercise of the Conversion Right, the Company shall deliver to the Registered Holder (without payment of any of the Warrant Price in cash) that number of Shares equal to the quotient obtained by dividing (x) the product of the number of Shares underlying the Warrant, multiplied by the difference between the Fair Market Value and the Warrant Price by (y) the Fair Market Value. The “Fair Market Value” means the average last sale price of the Common Stock in the principal trading market for the Common Stock as reported by any national securities exchange or quoted on the FINRA OTC Bulletin Board (or successor exchange), as the case may be, for the 10 consecutive trading days ending on the third trading day preceding the date the Warrants are exercised. The number of Shares to be delivered will be determined by the Company (with written notice to the Warrant Agent) using the formula set forth above. The Warrant Agent shall have no duty or obligation to investigate or confirm whether the Company’s determination of the number of Shares to be issued upon such exercise pursuant to this Section 3.5(a) is correct.
Determination of Amount. For the purpose of determining the amount of securities specified in paragraphs (e)(1) and (2) of this rule, the following provisions shall apply: