Net Issue Election. The Holder may elect to receive, without the payment by the Holder of any additional consideration, either (x) in the event of any liquidation, dissolution or winding up of the Company (whether actual or deemed to have occurred pursuant to Section 3.c of the Company's Certificate of Designation for Series C-1 Preferred Stock and Series C-2 Preferred Stock), the Net Liquidation Value of this Warrant (as hereinafter defined) or (y) shares equal to the Net Value of this Warrant (as hereinafter defined), or in either case any portion hereof, by the surrender of this Warrant or such portion to the Company, with the Notice of Net Issue Election in the form of Annex C hereto duly executed, at the office of the Company. Thereupon, the Company shall issue to the Holder the Net Liquidation Value of this Warrant (or portion thereof), in the case of a net exercise pursuant to clause (x) or such number of fully paid and nonassessable Series C Shares as is computed using the following formula, in the case of a net exercise pursuant to clause (y): X = Y(A-B) ------ A where X = the number of shares to be issued to the holder pursuant to this Section 1.2. Y = the number of shares covered by this Warrant in respect of which the net issue election is made pursuant to this Section 1.2. A = the fair market value of one Series C Share, which shall be deemed to equal the fair market value of one share of the Company's Common Stock, as determined in accordance with the provisions of this Section 1.2; provided, however, that if each Series C Share is then convertible into more than or less than one share of the Company's Common Stock, then the fair market value of each Series C Share shall be deemed to equal the fair market value of one share of the Company's Common Stock multiplied by the number of shares of the Company's Common Stock into which each Series C Share is then convertible.
Appears in 1 contract
Sources: Warrant Agreement (Usdata Corp)
Net Issue Election. The Any Holder may elect elect, not later than 45 days ------------------ after the date of the occurrence of a Change in Control (as such term is defined in the Indenture, dated as of ___________ __, 2001, between the Company and The Chase Manhattan Bank, as trustee, providing for the issuance of the Company's 10% Convertible Senior Notes due 2006) of the Company, to receive, without the payment by the Holder of any additional consideration, either (x) in the event shares of any liquidation, dissolution or winding up of the Company (whether actual or deemed to have occurred pursuant to Section 3.c of the Company's Certificate of Designation for Series C-1 Preferred Common Stock and Series C-2 Preferred Stock), the Net Liquidation Value of this Warrant (as hereinafter defined) or (y) shares equal to the Net Value value of this Warrant (as hereinafter defined)the Warrants held by such Holder, or in either case any portion hereofthereof, determined by the Company in accordance with the formula set forth below, by the surrender of this such Warrant or such portion Certificates to the Company, with the Notice of accompanied by a duly completed Net Issue Election Notice provided in the form of Annex C hereto duly executedWarrant Certificate, at in accordance with the office of the Companyprocedure set forth in Section 3(c) hereof. Thereupon, the Company shall issue to the Holder the Net Liquidation Value of this Warrant (or portion thereof), in the case of a net exercise pursuant to clause (x) or such number of fully paid and nonassessable Series C Shares shares of Common Stock as is computed using the following formula, in the case of a net exercise pursuant to clause (y): : X = Y(A-Y (A - B) ------ --------- A where X = the number of shares of Common Stock to be issued to the holder Holder pursuant to this Section 1.2. 3(b); Y = the number of shares covered by this Warrant of Common Stock issuable upon the exercise of the Warrants in respect of which the net issue election is made pursuant to this Section 1.2. 3(b); A = the fair market value of one Series C Share, which shall be deemed to equal the fair market value Fair Market Value of one share of the Company's Common Stock, as determined defined in accordance with the provisions Section 7 herein; and The Board of this Section 1.2; provided, however, that if each Series C Share is then convertible into more than or less than one share Directors of the Company's Common Stock, then Company shall promptly respond in writing to an inquiry by any Holder as to the fair market value of each Series C Share shall be deemed to equal the fair market value Fair Market Value of one share of the Company's Common Stock multiplied by the number of shares of the Company's Common Stock into which each Series C Share is then convertibleStock.
Appears in 1 contract
Sources: Warrant Agreement (Interliant Inc)
Net Issue Election. The Holder may elect to receive, without the payment by the Holder of any additional consideration, either (x) in the event of any liquidation, dissolution or winding up of the Company (whether actual or deemed to have occurred pursuant to Section 3.c of the Company's Certificate of Designation for Series C-1 Preferred Stock and Series C-2 Preferred Stock), the Net Liquidation Value of this Warrant (as hereinafter defined) or (y) shares equal to the Net Value of this Warrant (as hereinafter defined), or in either case any portion hereof, by the surrender of this Warrant or such portion to the Company, with the Notice of Net Issue Election in the form of Annex C hereto duly executed, at the office of the Company. Thereupon, the Company shall issue to the Holder the Net Liquidation Value of this Warrant (or portion thereof), in the case of a net exercise pursuant to clause (x) or such number of fully paid and nonassessable Series C Shares as is computed using the following formula, in the case of a net exercise pursuant to clause (y): X = Y(A-B) ------ A where X = the number of shares to be issued to the holder pursuant to this Section 1.2. Y = the number of shares covered by this Warrant in respect of which the net issue election is made pursuant to this Section 1.2. A = the fair market value of one Series C Share, which shall be deemed to equal the fair market value of one share of the Company's Common Stock, as determined in accordance with the provisions of this Section 1.2; provided, however, that if each Series C Share is then convertible into more than or less than one share of the Company's Common Stock, then the fair market value of each Series C Share shall be deemed to equal the fair market value of one share of the Company's Common Stock multiplied by the number of shares of the Company's Common Stock into which each Series C Share is then convertible. B = the Exercise Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 1.2. For purposes of this Section 1.2, the "fair market value" per share of the Company's Common Stock shall mean:
(a) If the Company's Common Stock is traded on a national securities exchange or admitted to unlisted trading privileges on such an exchange, or is listed on the SmallCap Market (the "SmallCap Market") of the National Association of Securities Dealers Automated Quotations System (the "NASDAQ"), the fair market value shall be the average of the last reported sale prices of the Company's Common Stock on such exchange or on the SmallCap Market over the five (5) consecutive trading days immediately preceding the effective date of exercise of the net issue election or if the last reported sale price information is not available for such days, the average of the mean of the closing bid and asked prices for such days on such exchange or on the SmallCap Market;
(b) If the Company's Common Stock is not listed or admitted to unlisted trading privileges, the fair market value shall be the average of the mean of the last bid and asked prices reported over the five (5) consecutive Business Days immediately preceding the effective date of exercise of the net issue election (1) by the NASDAQ or (2) if reports are unavailable under clause (1) above, by the National Quotation Bureau Incorporated; and
(c) If the Company's Common Stock is not so listed or admitted to unlisted trading privileges and bid and ask prices are not reported, the fair market value shall be the price per share which the Company could obtain from a willing buyer for shares sold by the Company from authorized but unissued shares, as such price shall be determined by mutual agreement of the Company and the holder of this Warrant. If the holder of this Warrant and the Company are unable to agree on such fair market value, the holder of this Warrant and the Company shall each select an independent and nationally-recognized investment banking firm and such selected firms shall select another such firm to appraise the fair market value of the Warrant and to perform the computations involved. The determination of such investment banking firm shall be binding upon the Company, the holder of this Warrant and any other holder of Warrants or Warrant Shares in connection with any transaction occurring at the time of such determination. All expenses of such investment banking firm shall be borne equally by the Company and the Holder of this Warrant. In all cases, the determination of fair market value shall be made without consideration of the lack of a liquid public market for the Common Stock and without consideration of any "control premium" or any discount for holding less than a majority or controlling interest of the outstanding Common Stock. For purposes of this Section 1.2, the term "Net Liquidation Value" of this Warrant, or portion thereof, shall mean the amount payable to the holders of Series C Shares (with respect to the number of Series C Shares covered by this Warrant in respect of which the net issue election is made pursuant to clause (x) of Section 1.2, and assuming, for purposes of calculating the "Net Liquidation Value, that such Series C Shares are issued and outstanding) as a result of or in connection with any liquidation, dissolution or winding up of the Company pursuant to Section 3 of the Company's Certificate of Designation for Series C-1 Preferred Stock and Series C-2 Preferred Stock (whether actual or deemed to have occurred pursuant to Section 3.c thereof) less the Exercise Price of such Series C Shares.
Appears in 1 contract
Sources: Warrant Agreement (Usdata Corp)
Net Issue Election. The In lieu of exercising this Warrant pursuant to Section 3 hereof, the Holder may elect to receive, without the payment by the Holder of any additional consideration, either (x) in a number of shares of Common Stock that is equal to the event of any liquidation, dissolution or winding up of the Company (whether actual or deemed to have occurred pursuant to Section 3.c of the Company's Certificate of Designation for Series C-1 Preferred Stock and Series C-2 Preferred Stock), the Net Liquidation Value value of this Warrant (as hereinafter defined) or (y) shares equal to the Net Value of this Warrant (as hereinafter defined), or in either case any portion hereof, hereof by the surrender of this Warrant or such portion to the Company, Company by surrender of this Warrant at the principal office of the Company together with the Notice of Net Issue Election in Notice similar to the form of Annex C annexed hereto as Exhibit B duly executed, at the office of the Company. Thereupon, the Company shall issue to the Holder the Net Liquidation Value of this Warrant (or portion thereof), in the case of a net exercise pursuant to clause (x) or such number of fully paid and nonassessable Series C Shares shares of Common Stock as is computed using the following formula, in the case of a net exercise pursuant to clause (y): : X = Y(AY (A-B) ------ A where X = the number of shares to be issued to the holder Holder pursuant to this Section 1.24. Y = the number of shares covered by this Warrant in respect of which the net issue election is made pursuant to this Section 1.24. A = the fair market value Current Value Per Share (as defined below). B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 4. For purposes of one Series C the above calculation, the "Current Value Per Share, which " shall be deemed (i) subject to equal clause (ii) below, the fair market value of one share of the Company's Common Stock, as determined in accordance with the provisions of this Section 1.2; provided, however, that if each Series C Share is then convertible into more than or less than one share of the Company's Common Stock, then the fair market value of each Series C Share shall be deemed to equal the fair market value of one share closing bid price of the Company's Common Stock multiplied as reported by the number of shares OTCBB or such other exchange where the Company's Common Stock is then trading on the Exercise Date, or (ii) if the Company is then subject to an Acquisition Event (as defined in Section 11), in which case the Current Value Per Share shall be the value per share that the holders of the Company's Common Stock into which each Series C Share is then convertible.actually received or will receive as determined pursuant to Section 11;
Appears in 1 contract
Net Issue Election. The Holder may elect to receive, without the payment by the Holder of any additional consideration, either (x) in shares of Common Stock equal to the event of any liquidation, dissolution or winding up of the Company (whether actual or deemed to have occurred pursuant to Section 3.c of the Company's Certificate of Designation for Series C-1 Preferred Stock and Series C-2 Preferred Stock), the Net Liquidation Value value of this Warrant (as hereinafter defined) or (y) shares equal to the Net Value of this Warrant (as hereinafter defined), or in either case any portion hereof, hereof by the surrender of this Warrant or such portion to the Company, with the Notice of Net Issue Election in the form of Annex C net issue election notice annexed hereto duly executed, at the principal office of the Company. Thereupon, the Company shall issue to the Holder the Net Liquidation Value of this Warrant (or portion thereof), in the case of a net exercise pursuant to clause (x) or such number of fully paid and nonassessable Series C Shares shares of Common Stock as is computed using the following formula, in the case of a net exercise pursuant to clause (y): X = : X= Y(A-B) ------ A where where: X = the number of shares of Common Stock to be issued to the holder Holder pursuant to this Section 1.24. Y = the number of shares of Common Stock covered by this Warrant in respect of which the net issue election is made pursuant to this Section 1.24. A = the Fair Market Value (defined below) of one share of Common Stock as determined at the time the net issue election is made pursuant to this Section 4. B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this Section 4. “Fair Market Value” of a share of Common Stock as of the date that the net issue election is made (the “Determination Date”) shall mean:
(i) If the net issue election is made in connection with and contingent upon the closing of the sale of the Company’s Common Stock to the public in a public offering pursuant to a Registration Statement under the 1933 Act (a “Public Offering”), and if the Company’s Registration Statement relating to such Public Offering (‘“Registration Statement”) has been declared effective by the Securities and Exchange Commission, then the initial “Price to Public” specified in the final prospectus with respect to such offering.
(ii) If the net issue election is not made in connection with and contingent upon a Public Offering, then as follows:
(a) If traded on a securities exchange or the Nasdaq National Market, the fair market value of one Series C Share, which the Common Stock shall be deemed to equal be the average of the closing or last reported sale prices of the Common Stock on such exchange or market over the five day period ending five trading days prior to the Determination Date;
(b) If otherwise traded in an over-the-counter market, the fair market value of one share the Common Stock shall be deemed to be the average of the Company's Common Stock, as determined in accordance with the provisions of this Section 1.2; provided, however, that if each Series C Share is then convertible into more than or less than one share closing ask prices of the Company's Common Stock over the five day period ending five trading days prior to the Determination Date; and
(c) If there is no public market for the Common Stock, then the fair market value of each Series C Share shall be deemed to equal the fair market value of one share of determined in good faith by the Company's Common Stock multiplied by the number ’s Board of shares of the Company's Common Stock into which each Series C Share is then convertibleDirectors.
Appears in 1 contract
Net Issue Election. The Holder may elect to receive, without the payment by the Holder of any additional consideration, either (x) in shares of Common Stock equal to the event of any liquidation, dissolution or winding up of the Company (whether actual or deemed to have occurred pursuant to Section 3.c of the Company's Certificate of Designation for Series C-1 Preferred Stock and Series C-2 Preferred Stock), the Net Liquidation Value value of this Warrant (as hereinafter defined) or (y) shares equal to the Net Value of this Warrant (as hereinafter defined), or in either case any portion hereof, hereof by the surrender of this Warrant or such portion to the Company, with the Notice of Net Issue Election in the form of Annex C net issue election notice annexed hereto duly executed, at the principal office of the Company. Thereupon, the Company shall issue to the Holder the Net Liquidation Value of this Warrant (or portion thereof), in the case of a net exercise pursuant to clause (x) or such number of fully paid and nonassessable Series C Shares shares of Common Stock as is computed using the following formula, in the case of a net exercise pursuant to clause (y): : X = Y(A-Y(A - B) ------ A where where: X = the number of shares of Common Stock to be issued to the holder Holder pursuant to this Section 1.24. Y = the number of shares of Common Stock covered by this Warrant in respect of which the net issue election is made pursuant to this Section 1.24. A = the fair market value of one Series C Share, which shall be deemed to equal the fair market value Fair Market Value (defined below) of one share of the Company's Common Stock, Stock as determined in accordance with at the provisions of time the net issue election is made pursuant to this Section 1.2; provided, however, that if each Series C Share 4. B = the Purchase Price in effect under this Warrant at the time the net issue election is then convertible into more than or less than one made pursuant to this Section 4. "Fair Market Value" of a share of Common Stock as of the Company's Common Stock, then date that the fair market value net issue election is made (the "Determination Date") shall mean:
(i) If the net issue election is made in connection with and contingent upon the closing of each Series C Share shall be deemed to equal the fair market value of one share sale of the Company's Common Stock multiplied by to the number of shares of public in a public offering pursuant to a Registration Statement under the 1933 Act (a "Public Offering"), and if the Company's Registration Statement relating to such Public Offering ("Registration Statement') has been declared effective by the Securities and Exchange Commission, then the initial "Price to Public" specified in the final prospectus with respect to such offering.
(ii) If the net issue election is not made in connection with and contingent upon a Public Offering, then as follows:
(A) If traded on a securities exchange or the Nasdaq National Market, the fair market value of the Common Stock into which each Series C Share shall be deemed to be the average of the closing or last reported sale prices of the Common Stock on such exchange or market over the five day period ending five trading days prior to the Determination Date;
(B) If otherwise traded in an over-the-counter market, the fair market value of the Common Stock shall be deemed to be the average of the closing ask prices of the Common Stock over the five day period ending five trading days prior to the Determination Date; and
(C) If there is no public market for the Common Stock, then convertiblefair market value shall be determined in good faith by the Company's Board of Directors.
Appears in 1 contract
Net Issue Election. The Holder holder hereof may elect to receive, without the payment by the Holder such holder of any additional consideration, either (x) in the event of any liquidation, dissolution or winding up of the Company (whether actual or deemed to have occurred pursuant to Section 3.c of the Company's Certificate of Designation for Series C-1 Preferred Stock and Series C-2 Preferred Stock), the Net Liquidation Value of this Warrant (as hereinafter defined) or (y) shares equal to the Net Value value of this Warrant (as hereinafter defined), or in either case any portion hereof, hereof by the surrender of this Warrant or such portion to the Company, with the Notice of Net Issue Election in the form of Annex C hereto subscription at the end hereof duly executedexecuted by such holder, at the office of the Company. Thereupon, the Company shall issue to the Holder the Net Liquidation Value of this Warrant (or portion thereof), in the case of a net exercise pursuant to clause (x) or such holder such number of fully paid and nonassessable Series C Shares shares of Common Stock as is computed using the following formula, in the case of a net exercise pursuant to clause (y): X = Y(A-B) ------ A : where X = the number of shares to be issued to the such holder pursuant to this Section 1.2subsection 1.4. Y = the number of shares covered by this Warrant in respect of which the net issue election is made pursuant to this Section 1.2. subsection 1.4.
A = the fair market value of one Series C Share, which shall be deemed to equal the fair market value (“FMV”) of one share of the Company's Common Stock, as determined in accordance with the provisions of this Section 1.2; provided4(b), howeveras at the time the net issue election is made pursuant to this subsection 1.4. B = the Purchase Price in effect under this Warrant at the time the net issue election is made pursuant to this subsection 1.4. For the purposes of this Section 4(b), that FMV shall be determined at the time of exercise and shall mean: (A) if each Series C Share the Common Stock is then convertible into more than or less than one share publicly traded, the average of the Company's last sale price per share as reported by the Nasdaq National Market or the Nasdaq SmallCap Market (or on any other national securities exchange on which the Common StockStock is traded) (or if the last reported sale price is not available for any such days, the average of the mean of the closing bid and ask prices for such days) for the ten (10) prior trading days or (B) if the Common Stock is not then the fair market value of each Series C Share shall be deemed to equal publicly traded, the fair market value of one share of the Company's Common Stock multiplied shall be determined in good faith by the number Board of shares Directors of the Company's . In the event the Common Stock into which each Series C Share is then convertiblenot publicly traded, the Board of Directors of the Company shall promptly respond in writing to an inquiry by the holder hereof as to the fair market value of one share of Common Stock for purpose of this Section 4(b).
Appears in 1 contract