Reset. Other than in connection with (i) full or partial consideration in connection with a strategic merger, acquisition, consolidation or purchase of substantially all of the securities or assets of a corporation or other entity by the Company, provided such issuances are not for the purpose of raising capital, (ii) the Company’s issuance of securities in connection with strategic license agreements and other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iii) the Company’s issuance of Common Stock or the issuances or grants of options to purchase Common Stock pursuant to stock option plans and employee stock purchase plans described on Schedule 5(d) to the Subscription Agreement, (iv) underwritten public offerings by the Company, (v) as described in the Reports (as defined in the Subscription Agreement), and (vi) as described on Schedule 7 hereto (collectively the foregoing are “Excepted Issuances”), if at any time during the Compliance Period (as defined in the Subscription Agreement) while the Buyer is holding Shares, the Company shall offer, issue or agree to issue any common stock or securities convertible into or exercisable for shares of Common Stock (or modify any of the foregoing which may be outstanding) to any person or entity at a price per share or conversion or exercise price per share which shall be less than $1.00, without the consent of Buyer, then the Seller shall deliver, for each such occasion, additional Shares to Buyer so that the average per share purchase price of the shares of Common Stock sold to Buyer (of only the Purchased Shares still owned by Buyer) is equal to such other lower price per share. For purposes of this Section 7, the purchase price of the Shares shall be deemed to be $1.00 (“Imputed Share Price”). The delivery to the Buyer of the additional Shares shall be not later than the closing date of the transaction giving rise to the requirement to issue additional Shares (“Issuance Date”). The Buyer is hereby granted by the Company the registration rights described in Section 11 of the Subscription Agreement in relation to such additional Shares, or at the election of the Buyer, registration rights, if any, granted in connection with the dilutive issuance. For purposes of the issuance and adjustment described in this paragraph, the issuance of any security of the Company carrying the right to convert such security into shares of Common Stock or of any warrant, right or option to purchase Common Stock shall result in the delivery of the additional Shares upon the sooner of the agreement to or actual issuance of such convertible security, warrant, right or option and again at any time upon any subsequent issuances of shares of Common Stock upon exercise of such conversion or purchase rights if such issuance is at a price lower than $1.00.
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Reset. Other than in connection with (a) If, from the date hereof until the earlier of the (i) full or partial consideration in connection with a strategic merger, acquisition, consolidation or purchase of substantially all of the securities or assets of a corporation or other entity by the Company, provided such issuances are not for the purpose of raising capital, Net Income Drop Away Date and (ii) third anniversary of the Company’s issuance of securities in connection with strategic license agreements and other partnering arrangements so long as such issuances are not for the purpose of raising capital, Closing Date:
(iii1) the Company’s issuance of Common Stock Company issues or the issuances sells, or grants of options agrees to purchase Common Stock pursuant to stock option plans and employee stock purchase plans described on Schedule 5(d) to the Subscription Agreement, (iv) underwritten public offerings by the Company, (v) as described in the Reports (as defined in the Subscription Agreement), and (vi) as described on Schedule 7 hereto (collectively the foregoing are “Excepted Issuances”), if at any time during the Compliance Period (as defined in the Subscription Agreement) while the Buyer is holding Shares, the Company shall offer, issue or agree to issue any common stock sell, in one or securities convertible into or exercisable for shares more transactions, more than an aggregate of $300,000,000 of Common Stock (or modify any other securities that are convertible into or exchangeable or exercisable for, or are otherwise linked to, Common Stock) (excluding up to an aggregate of $25,000,000 of Common Stock or other equity securities and/or options or other rights in respect thereof to be offered to directors, employees or consultants of the foregoing which may be outstandingCompany or its direct or indirect Subsidiaries pursuant to employee benefit plans, employment agreements or other customary compensatory plans or arrangements) to any person or entity at a purchase (or reference, implied, conversion, exchange or comparable) price (the “New Issuance Price”) per share or conversion or less than the Reference Purchase Price (a “Reset Issuance”), or
(2) there occurs any Fundamental Change in which the Underlying Security Price (together with the New Issuance Price, the “Reset Price”) is less than the Reference Purchase Price (a “Triggering Fundamental Change” and, together with a Reset Issuance, a “Reset Event”). then, on the earlier of (A) the second business day after the closing of any Reset Issuance and (B) the date of the occurrence of a Triggering Fundamental Change (or, if later, on the Closing Date, or, if later, on the second business day following the later of (x) the average price calculation specified below in this Section 4.11 and (y) the stockholder approval specified below in this Section 4.11, if and as applicable), the Company shall make a payment to Purchaser (the “Reset Payment”) equal to the product of (i) an amount equal to the (z) Reference Purchase Price minus the Reset Price, divided by (y) the Reference Purchase Price and (ii) the Purchase Price (including (1) if the Warrant has been exercised by Purchaser prior to such date, the aggregate exercise price per share which shall be less than $1.00paid by Purchaser for the Warrant shares and (2) if the Warrant has been exchanged for Convertible Preferred Stock by Purchaser prior to such date, without the consent value of Buyerthe Warrant as calculated pursuant to the terms of the Warrant), then grossed up as required to compensate Purchaser for any diminution in value in the Seller shall deliver, for each Securities resulting from such occasion, additional Shares to Buyer so Reset Payment; provided that the average per share purchase price Company may, at its option and as an alternative to making all or any portion of such Reset Payment in cash, instead pay the Reset Payment due Purchaser by delivering to Purchaser shares of Common Stock sold to Buyer (of only valued at the Purchased Shares still owned by Buyer) is equal to such other lower price per share. For purposes of this Section 7, the purchase price of the Shares shall be deemed to be $1.00 (“Imputed Share Price”). The delivery to the Buyer Market Price of the additional Shares shall be not later than the closing date of the transaction giving rise to the requirement to issue additional Shares (“Issuance Date”). The Buyer is hereby granted by the Company the registration rights described in Section 11 of the Subscription Agreement in relation to such additional Shares, or at the election of the Buyer, registration rights, if any, granted in connection with the dilutive issuance. For purposes of the issuance and adjustment described in this paragraph, the issuance of any security of the Company carrying the right to convert such security into shares a share of Common Stock or as of any warrant, right or option (x) the last trading day prior to purchase Common Stock shall result in the delivery of the additional Shares upon the sooner of the agreement to or actual issuance of such convertible security, warrant, right or option and again at any time upon any subsequent issuances of shares of Common Stock upon exercise of such conversion or purchase rights if such issuance is at a price lower than $1.00.date
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Reset. Other than in connection with (ia) full or partial consideration in connection with a strategic mergerIf, acquisition, consolidation or purchase of substantially all of from the securities or assets of a corporation or other entity by date hereof until the Company, provided such issuances are not for date that is eighteen months after the purpose of raising capital, Closing Date:
(ii1) the Company’s issuance of securities in connection with strategic license agreements and other partnering arrangements so long as such issuances are not for the purpose of raising capitalCompany issues or sells, (iii) the Company’s issuance of Common Stock or the issuances or grants of options agrees to purchase Common Stock pursuant to stock option plans and employee stock purchase plans described on Schedule 5(d) to the Subscription Agreement, (iv) underwritten public offerings by the Company, (v) as described in the Reports (as defined in the Subscription Agreement), and (vi) as described on Schedule 7 hereto (collectively the foregoing are “Excepted Issuances”), if at any time during the Compliance Period (as defined in the Subscription Agreement) while the Buyer is holding Shares, the Company shall offer, issue or agree to issue any common stock or securities convertible into or exercisable for shares sell, more than $500 million of Common Stock (or modify other securities that are convertible into or exchangeable or exercisable for, or are otherwise linked to, Common Stock) at a purchase (or reference, implied, conversion, exchange or comparable) price (the “New Issuance Price”) per share less than the Reference Purchase Price (a “Reset Issuance”), or
(2) there occurs any Fundamental Change in which the Underlying Security Price (together with the New Issuance Price, the “Reset Price”) is less than the Reference Purchase Price (a “Triggering Fundamental Change” and, together with a Reset Issuance, a “Reset Event”). then, on the earlier of (A) the second business day after the closing of any Reset Issuance and (B) the date of the foregoing which may be outstandingoccurrence of a Triggering Fundamental Change (or, if later, on the Closing Date, or, if later, on the second business day following the later of (x) the average price calculation specified below in this Section 4.11 and (y) the shareholder approval specified below in this Section 4.11, if and as applicable), the Company shall make a payment to each Investor (the “Reset Payment”), equal to the product of (i) an amount equal to the (z) Reference Purchase Price minus the Reset Price, divided by (y) the Reference Purchase Price multiplied by (ii) the aggregate amount paid by such Investor pursuant to Article I (including, (1) if any person or entity at a price per share or conversion or Warrant has been exercised by such Investor prior to such date, the aggregate exercise price per share which shall be less than $1.00paid by such Investor for the Warrant shares and (2) if any Warrant has been exchanged for convertible preferred stock by such Investor prior to such date, without the consent value of BuyerWarrant as calculated pursuant to the terms of the Warrant), then grossed up as required to compensate each Investor for any diminution in value in the Seller shall deliver, for each Securities resulting from such occasion, additional Shares to Buyer so Reset Payment; provided that the average per share purchase price Company may, at its option and as an alternative to making all or any portion of such Reset Payment, instead pay the Reset Payment due each Investor by delivering to such Investor shares of Common Stock sold valued at the lower of the Market Price of a share of Common Stock as of (x) the last trading day prior to Buyer the date on which this payment occurs or (y) the first date of only the Purchased Shares still owned announcement of the Reset Issuance or the Preliminary Fundamental Change that resulted in a Triggering Fundamental Change, but solely to the extent that any such issuance of shares of Common Stock would not result in (A) such Investor owning or being deemed for applicable regulatory purposes to own 25% or more of the voting securities of the Company (or the surviving corporation resulting from such Triggering Change of Control), (B) unless the OTS shall have issued a written acceptance of a rebuttal of control submission by Buyersuch Investor pursuant to 12 C.F.R. §574.4(e), such Investor owning or being deemed for applicable regulatory purposes to own 10% or more of the total number of voting securities of the Company Common Stock then outstanding (or the surviving corporation resulting from such Triggering Change of Control) is equal or (C) the Company failing to comply with applicable New York Stock Exchange requirements or the requirement of any other Governmental Entity (provided that, in the case of this clause (C), the Company shall, at its election, have a reasonable period of time in which to seek any shareholder approval required to satisfy such other lower price per share. requirements and the Company’s payment obligation pursuant hereto shall be postponed until such time as such shareholder approval shall have been obtained or denied).
(b) For purposes of this Section 7, the purchase price of the Shares shall be deemed to be $1.00 (“Imputed Share Price”). The delivery to the Buyer of the additional Shares shall be not later than the closing date of the transaction giving rise to the requirement to issue additional Shares (“Issuance Date”). The Buyer is hereby granted by the Company the registration rights described in Section 11 of the Subscription Agreement in relation to such additional Shares, or at the election of the Buyer, registration rights, if any, granted in connection with the dilutive issuance. For purposes of the issuance and adjustment described in this paragraph, the issuance of any security of the Company carrying the right to convert such security into shares of Common Stock or of any warrant, right or option to purchase Common Stock shall result in the delivery of the additional Shares upon the sooner of the agreement to or actual issuance of such convertible security, warrant, right or option and again at any time upon any subsequent issuances of shares of Common Stock upon exercise of such conversion or purchase rights if such issuance is at a price lower than $1.00.4.11:
Appears in 1 contract
Reset. Other than in connection with (i) full or partial consideration in connection with a strategic merger, acquisition, consolidation or purchase of substantially all of the securities or assets of a corporation or other entity by the Company, provided such issuances are not for the purpose of raising capital, (ii) the Company’s issuance of securities in connection with strategic license agreements and other partnering arrangements so long as such issuances are not for the purpose of raising capital, (iii) the Company’s issuance a. The aggregate amount of Common Stock or the issuances or grants of options to purchase Common Stock pursuant to stock option plans and employee stock purchase plans described on Schedule 5(d) issuable to the Subscription Agreement, (iv) underwritten public offerings by the Company, (v) Purchasers shall be redetermined as described in the Reports (as defined in the Subscription Agreement), and (vi) as described on Schedule 7 hereto (collectively the foregoing are “Excepted Issuances”)herein and, if at any time during the Compliance Period (as defined in the Subscription Agreement) while the Buyer is holding Sharesappropriate, the Company shall offer, issue or agree to issue any common stock or securities convertible into or exercisable for additional shares of Common Stock (or modify any the "Reset Shares") or, if Company stockholder approval of the foregoing issuance of the Reset Shares has not been obtained by the 150th day after the Closing, cash or a Company promissory note (as more fully described below) (the "Reset Amount" and together with the Reset Shares, the "Reset Securities") will be issued (as applicable) and delivered to the Purchasers as provided herein. The Purchase Price shall be deemed the purchase price of all the securities to be issued pursuant to this Agreement including the Reset Securities.
b. On the earlier of (i) the 120th day following the Closing and (ii) the effective date of the Registration Statement (the "Reset Date"), the Company shall determine the average closing bid price for the Common Stock as reported by AMEX for the 20 consecutive trading days preceding the Reset Date (the "Reset Price"). If the Reset Price is less than $2.88 (subject to appropriate adjustment for stock splits, stock dividends and similar events) for the Reset Date, then, subject to subsection (d) below, the Company shall promptly issue to the Purchasers hereunder, without payment of additional consideration therefor, that number of additional shares of Common Stock calculated as follows: A = (B minus C) divided by D A= The aggregate number of Reset Shares issuable to the Purchasers B= X multiplied by Y multiplied by Z, where X = The aggregate number of Common Shares issuable hereunder then held by the Purchasers and not sold or otherwise transferred (excluding the Reset Shares) Y = $500,000 divided by the aggregate number of Common Shares issuable hereunder (excluding the Reset Shares) Z = 130% C= The product obtained by multiplying the aggregate number of Common Shares issuable hereunder then held by the Purchasers and not sold or otherwise transferred (excluding the Reset Shares) by the Reset Price D= The Reset Price By way of example, if the Reset Price for the Reset Date is $2.50 and the Purchasers have purchased an aggregate of 226,004 Common Shares for the Purchase Price of $500,000 and still own all of such shares as of the Reset Date, then the Company shall issue to the Purchasers 33,720 Reset Shares following the Reset Date.
c. The Reset Shares, if any, issued hereunder shall be subject to the restrictions, limitations and conditions imposed upon the Common Shares issued upon the initial subscription under this Agreement. The Reset Securities shall be allocated among the Purchasers in proportion to the number of Common Shares acquired by them hereunder.
d. If Company stockholder approval of the issuance of the Reset Shares is not obtained on or prior to the 150th day after the Closing, then instead of issuing the Purchasers the Reset Shares to which may they otherwise would be outstandingentitled to receive in accordance with subsection (b) above, the Company shall deliver to any person or entity at the Purchasers a price per share or conversion or exercise price per share cash amount (the "Reset Payment") equal to the then fair market value of the Reset Shares (which shall be less than $1.00equal to the average closing bid price for the Common Stock as reported by AMEX for the 20 consecutive trading days preceding the Reset Date). If the Company is financially unable to deliver all of the Reset Payment in cash within three days of the Reset Date, then that portion of the Reset Payment which the Company is unable to pay shall be payable by delivery by the Company of a promissory note in such amount bearing interest at the rate of 9% per annum, with principal and interest payable in full on the first anniversary of the date of delivery.
e. Within 30 days after stockholder approval of the issuance of the Reset Shares, if any, the Company will file a registration statement (the "Reset Registration Statement") under the Securities Act to permit the offer and sale by the Purchasers of the Reset Shares. The Company will use its reasonable best efforts to cause the Reset Registration Statement to be declared effective by the SEC within 75 days after the initial filing thereof. The fees and expenses related to such filing (excluding underwriter discounts and commissions and the fees and expenses of counsel to the Purchasers) will be payable by the Company. The Company may delay the filing and/or effectiveness of the Reset Registration Statement for a period not to exceed 90 days if the Company is in possession of material nonpublic information that the Company would be required pursuant to applicable law, rule or regulation to disclose in the Reset Registration Statement and that is not, but for the registration, otherwise required to be so disclosed at the time of such registration, the disclosure of which, in its good faith judgment, is likely to have a material adverse effect on the business, operations or prospects of the Company. The Company will use its reasonable best efforts to keep the Reset Registration Statement continuously effective until the Purchasers have completed the distribution described therein; provided that, notwithstanding the foregoing, at the Company's election, the Company may cease to keep the Reset Registration Statement effective with respect to any shares covered thereby, and the registration rights of a Purchaser shall expire with respect to such shares, at such time as such shares may be sold pursuant to Rule 144(k) under the Securities Act (or other exemption from registration mutually acceptable to the Company and the Purchasers). In connection with the filing of the Reset Registration Statement, the Company will indemnify and hold harmless, to the extent permitted by law, the Purchasers and their respective directors, officers and affiliates (the "Indemnitees") against any and all losses, claims, damages, liabilities and/or expenses (collectively, "Claims") to which such Indemnitees may become subject under the Securities Act, common law or otherwise, insofar as such Claims (or actions or proceedings in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Reset Registration Statement, or incorporated by reference therein, or in any preliminary, final or summary prospectus contained therein (except where errors or omissions in such preliminary prospectus are corrected in the final prospectus and the Purchasers fail to deliver such final prospectus) or any amendment or supplement thereto, or (ii) 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, and the Company will reimburse the Indemnitees for any legal expenses reasonably incurred by them in connection with defending any such Claim; provided, however, that the Company shall not be liable to any Indemnitee in any such case to the extent that any such Claim (or action or proceeding in respect thereof) arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission made in the Reset Registration Statement, or incorporated by reference therein, or in any amendment or supplement thereto or in any such preliminary, final or summary prospectus in reliance upon and in material conformity with written information with respect to any Purchaser furnished to the Company by or on behalf of such Purchaser for use in the preparation thereof. The foregoing indemnity agreement shall not apply to amounts paid in settlement of claims if such settlement is effectuated without the consent of Buyerthe Company (which shall not be unreasonably withheld). At its expense, then the Seller Company shall deliver, for each make available to the Purchasers such occasion, additional Shares to Buyer so that the average per share purchase price number of copies of the shares prospectus constituting a part of Common Stock sold the Reset Registration Statement as is reasonably necessary to Buyer (of only allow the Purchased Shares still owned by Buyer) is equal Purchasers to such other lower price per shareresell the Reset Shares, if any. For purposes of this Section 7In connection with the Company's registration obligations set forth above, the purchase price of Company shall use its reasonable efforts to cause the Shares shall be deemed shares covered by the Reset Registration Statement to be $1.00 (“Imputed Share Price”). The delivery to the Buyer of the additional Shares shall be not later than the closing date of the transaction giving rise to the requirement to issue additional Shares (“Issuance Date”). The Buyer is hereby granted by the Company the registration rights described in Section 11 of the Subscription Agreement in relation to such additional Shares, listed or at the election of the Buyer, registration rightsadmitted for trading or otherwise included on each securities exchange, if any, granted in connection with the dilutive issuance. For purposes of the issuance and adjustment described in this paragraph(including, the issuance of any security of without limitation, The American Stock Exchange) on which similar securities issued by the Company carrying the right to convert such security into shares of Common Stock or of any warrant, right or option to purchase Common Stock shall result in the delivery of the additional Shares upon the sooner of the agreement to or actual issuance of such convertible security, warrant, right or option and again at any time upon any subsequent issuances of shares of Common Stock upon exercise of such conversion or purchase rights if such issuance is at a price lower than $1.00are then listed.
Appears in 1 contract
Sources: Stock Purchase Agreement (Healthcare Integrated Services Inc)
Reset. Other than in connection with (a) If, from the date hereof until the earlier of the (i) full or partial consideration in connection with a strategic merger, acquisition, consolidation or purchase of substantially all of the securities or assets of a corporation or other entity by the Company, provided such issuances are not for the purpose of raising capital, Net Income Drop Away Date and (ii) third anniversary of the Company’s issuance of securities in connection with strategic license agreements and other partnering arrangements so long as such issuances are not for the purpose of raising capital, Closing Date:
(iii1) the Company’s issuance of Common Stock Company issues or the issuances sells, or grants of options agrees to purchase Common Stock pursuant to stock option plans and employee stock purchase plans described on Schedule 5(d) to the Subscription Agreement, (iv) underwritten public offerings by the Company, (v) as described in the Reports (as defined in the Subscription Agreement), and (vi) as described on Schedule 7 hereto (collectively the foregoing are “Excepted Issuances”), if at any time during the Compliance Period (as defined in the Subscription Agreement) while the Buyer is holding Shares, the Company shall offer, issue or agree to issue any common stock sell, in one or securities convertible into or exercisable for shares more transactions, more than an aggregate of $300,000,000 of Common Stock (or modify any other securities that are convertible into or exchangeable or exercisable for, or are otherwise linked to, Common Stock) (excluding up to an aggregate of $25,000,000 of Common Stock or other equity securities and/or options or other rights in respect thereof to be offered to directors, employees or consultants of the foregoing which may be outstandingCompany or its direct or indirect Subsidiaries pursuant to employee benefit plans, employment agreements or other customary compensatory plans or arrangements) to any person or entity at a purchase (or reference, implied, conversion, exchange or comparable) price (the “New Issuance Price”) per share or conversion or exercise price per share which shall be less than $1.00the Reference Purchase Price (a “Reset Issuance”), without or
(2) there occurs any Fundamental Change in which the consent Underlying Security Price (together with the New Issuance Price, the “Reset Price”) is less than the Reference Purchase Price (a “Triggering Fundamental Change” and, together with a Reset Issuance, a “Reset Event”), then, on the earlier of Buyer, then (A) the Seller shall deliver, for each such occasion, additional Shares to Buyer so that second business day after the average per share purchase price closing of any Reset Issuance and (B) the date of the occurrence of a Triggering Fundamental Change (or, if later, on the second business day following the later of (x) the determination of the Market Price of a share of Common Stock specified below in this Section 4.11 and (y) the stockholder approval specified below in this Section 4.11, if and as applicable), the Company shall make a payment (but only by delivering shares of Common Stock sold or, as provided in and subject to Buyer Section 4.12, shares of Substitute Preferred Stock or shares of such other class of preferred stock as is described in Section 4.12(d)(ii)) to Purchaser (of only the Purchased Shares still owned by Buyer“Reset Payment”) is equal to the product of (i) an amount equal to the (x) Reference Purchase Price minus the greater of (1) $2.50 and (2) the Reset Price, divided by (y) the Reference Purchase Price and (ii) the Reset Purchase Price, grossed up as required to compensate Purchaser for any diminution in value in the Securities resulting from such other Reset Payment. Subject to the provisions of Section 4.12, any such Reset Payment shall be paid by delivering to Purchaser shares of Common Stock valued at the lower price per share. of the Market Price of a share of Common Stock as of (x) the last trading day prior to the date on which this payment occurs or (y) the first date of the public announcement of the Reset Issuance or the Preliminary Fundamental Change that resulted in a Triggering Fundamental Change (provided that, if a Reset Payment becomes due before the Company obtains the approval by the Company’s stockholders of the Stockholder Proposals, (i) the Company shall, at its election, have a reasonable period of time in which to seek such approvals and the Company’s payment obligation pursuant hereto shall be postponed during such reasonable period of time and (ii) if after the lapse of such reasonable period of time the Company has not obtained such approvals, upon request of Purchaser, the Company shall deliver to Purchaser such number of shares of Substitute Preferred Stock as may be required to satisfy the Company’s remaining obligations under this Section 4.11).
(b) For purposes of this Section 7, the purchase price of the Shares shall be deemed to be $1.00 (“Imputed Share Price”). The delivery to the Buyer of the additional Shares shall be not later than the closing date of the transaction giving rise to the requirement to issue additional Shares (“Issuance Date”). The Buyer is hereby granted by the Company the registration rights described in 4.11 and Section 11 of the Subscription Agreement in relation to such additional Shares, or at the election of the Buyer, registration rights, if any, granted in connection with the dilutive issuance. For purposes of the issuance and adjustment described in this paragraph, the issuance of any security of the Company carrying the right to convert such security into shares of Common Stock or of any warrant, right or option to purchase Common Stock shall result in the delivery of the additional Shares upon the sooner of the agreement to or actual issuance of such convertible security, warrant, right or option and again at any time upon any subsequent issuances of shares of Common Stock upon exercise of such conversion or purchase rights if such issuance is at a price lower than $1.00.4.12:
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