In the event of a Change in Capitalization, the Committee shall conclusively determine the appropriate adjustments, if any, to the maximum number and class of shares of stock with respect to which Options or Awards may be granted under the Plan, the number and class of shares as to which Options or Awards have been granted under the Plan, and the purchase price therefor, if applicable.
Adjustments upon Changes in Capitalization. In the event of changes in the outstanding Common Stock or in the capital structure of the Company by reason of any stock or extraordinary cash dividend, stock split, reverse stock split, an extraordinary corporate transaction such as any recapitalization, reorganization, merger, consolidation, combination, exchange, or other relevant change in capitalization occurring after the grant date of any Award, Awards granted under the Plan and any Award Agreements, the exercise price of Options and SARs, the performance goals to which Performance Units are subject, the maximum number of shares of Common Stock in the Plan Pool subject to all Awards will be equitably adjusted or substituted, as to the number, price or kind of a share of Common Stock or other consideration subject to such Awards to the extent necessary to preserve the economic intent of such Award. In the case of adjustments made pursuant to this [Section 2.3(b)], unless the Committee specifically determines that such adjustment is in the best interests of the Company or its affiliates, the Committee shall, in the case of ISOs, ensure that any adjustments under this [Section 2.3(b)] will not constitute a modification, extension or renewal of the ISOs within the meaning of Section 424(h)(3) of the Code and in the case of Non-qualified Options, ensure that any adjustments under this [Section 2.3(b)] will not constitute a modification of such Non-qualified Options within the meaning of [Section 409A]. Any adjustments made under this [Section 2.3(b)] shall be made in a manner which does not adversely affect the exemption provided pursuant to Rule 16b-3 under the 1934 Act. The Company shall give each affected Grantee notice of an adjustment hereunder and, upon notice, such adjustment shall be conclusive and binding for all purposes.
Subject to any required action by the shareholders of the Company, the number of Shares covered by each outstanding Award, and the number of Shares which have been authorized for issuance under the Plan but as to which no Awards have yet been granted or which have been returned to the Plan, the exercise or purchase price of each such outstanding Award, as well as any other terms that the Administrator determines require adjustment shall be proportionately adjusted for # any increase or decrease in the number of issued Shares resulting from a stock split, reverse stock split, stock dividend, combination or reclassification of the Shares, or # any other increase or decrease in the number of issued Shares effected without receipt of consideration by the Company; provided, however that conversion of any convertible securities of the Company shall not be deemed to have been effected without receipt of consideration. The Administrator shall make the appropriate adjustments to # the maximum number and/or class of securities issuable under this Plan; and # the number and/or class of securities and the exercise price per Share in effect under each outstanding Award in order to prevent the dilution or enlargement of benefits thereunder; provided, however, that the number of Shares subject to any Award shall always be a whole number and the Administrator shall make such adjustments as are necessary to insure Awards of whole Shares. Such adjustment shall be made by the Administrator and its determination shall be final, binding and conclusive.
Adjustment in Capitalization. In the event of any change in the outstanding shares of Stock that occurs after ratification of the Plan by the stockholders of the Company by reason of a Stock dividend or split, recapitalization, merger, consolidation, combination, exchange of shares or other similar corporate change, the aggregate number of shares of Stock available for issuance under [Section 5(a)], subject to each outstanding Award and the other terms thereof, and the limitations set forth in [Section 5(c)], shall be adjusted appropriately by the number of shares, kind of shares or other consideration subject to such Awards as the Committee determines, which determination shall be conclusive; provided, however, that fractional shares shall be rounded to the nearest whole share.
Adjustments Upon Changes in Capitalization, Etc. In the event of any change in the outstanding Common Stock of the Company by reason of any stock split, stock dividend, recapitalization, merger, consolidation, combination or exchange of Common Stock or other similar corporate change or in the event of any special distribution to shareholders, the Committee shall make such equitable adjustments in the number of shares of Restricted Stock as the Committee determines are necessary and appropriate. Any such adjustment shall be conclusive and binding for all purposes of the Plan.
Changes in Capitalization. In the event there are any changes in the Common Stock or the capitalization of the Corporation through a corporate transaction, such as any merger, any acquisition through the issuance of capital stock of the Corporation, any consolidation, any separation of the Corporation (including a spin-off or other distribution of stock of the Corporation), any reorganization of the Corporation (whether or not such reorganization comes within the definition of such term in Section 368 of the Code), or any partial or complete liquidation by the Corporation, recapitalization, stock dividend, stock split or other change in the corporate structure, appropriate adjustments and changes shall be made by the Committee in # the number and type or class of shares and the option price per share of stock subject to this option, and # such other provisions of this option as may be necessary and equitable to carry out the foregoing purposes.
The authorized capital stock of the Company as of the date of this Agreement consists of 3,500,000 shares of Common Stock, of which, as of , 2,484,211 shares were issued and outstanding, 140,000 shares of Series A Preferred Stock, par value per share, of which 105,303 shares were issued and outstanding as of , and 360,000 shares of Series B Preferred Stock, of which 244,263 shares were issued and outstanding as of . All of the issued and outstanding shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and nonassessable, except as may be provided by Section 630 of the New York Business Corporation Law, and are free from preemptive rights.
Capitalization. As of the date hereof, the authorized capital stock of the Company, and number of shares issued and outstanding, is as set forth in the Company’s most recent periodic report filed with the SEC. Except as disclosed on [Schedule 3(c)] hereof, no shares are reserved for issuance pursuant to the Company’s stock option plans. Except as disclosed in the SEC Documents no shares are reserved for issuance pursuant to securities exercisable for, or convertible into or exchangeable for shares of Common Stock. All of such outstanding shares of capital stock are, or upon issuance will be, duly authorized, validly issued, fully paid and non-assessable. No shares of capital stock of the Company are subject to preemptive rights or any other similar rights of the shareholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. As of the effective date of this Agreement, and except as disclosed in the SEC Documents, # there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any character whatsoever relating to, or securities, notes or rights convertible into or exchangeable for any shares of capital stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries, # there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act and # there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of any of the Securities. The Company has furnished to the Purchaser true and correct copies of the Company’s Certificate of Incorporation as in effect on the date hereof (“Certificate of Incorporation”), the Company’s By-laws, as in effect on the date hereof (the “By-laws”), and the terms of all securities convertible into or exercisable for Common Stock of the Company and the material rights of the holders thereof in respect thereto.
“Common Stock” means # the Company’s shares of common stock, par value per share, and # any capital stock into which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock.
Market Capitalization. The Borrower fails to maintain a market capitalization of at least on any Trading Day, which shall be calculated by multiplying # the closing price of the Borrower’s common stock on the Trading Day immediately preceding the respective date of calculation by # the total shares of the Borrower’s common stock issued and outstanding on the Trading Day immediately preceding the respective date of calculation.
Equity Capitalization. Except as disclosed in the SEC Documents: # none of ’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by or any Subsidiary; # there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which or any of its Subsidiaries is or may become bound to issue additional capital stock of or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of or any of its Subsidiaries, other than future potential issuances of additional shares of Common Stock to Sichenzia Ross Ference Kesner LLP for any future financings by at a price per share less than , and the potential issuance to a certain lead investor in ’s prior financings of additional shares of common stock or convertible preferred stock to obtain the consent of the lead investor to future financings below per share, with such issuance obligations to cease when the investor no longer owns any Series L Preferred Shares; # there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of or any of its Subsidiaries or by which or any of its Subsidiaries is or may become bound, other than that certain loan and security agreement with Oxford Finance LLC dated , and equipment leases and equipment financing in the ordinary course of business; # there are no financing statements securing obligations in any amounts filed in connection with or any of its Subsidiaries; # there are no agreements or arrangements under which or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act other than various prior issuances of securities that have not been previously registered; # there are no outstanding securities or instruments of or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which or any of its Subsidiaries is or may become bound to redeem a security of or any of its Subsidiaries; # there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; # neither nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and # neither nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of ’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. has furnished to true, correct and complete copies of ’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and ’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto that have not been disclosed in the SEC Documents.
Company Capitalization. The Company has an authorized capitalization as set forth in the Registration Statement, the Prospectus and the Prospectus Supplement, and all of the issued shares of capital stock of the Company have been duly authorized and validly issued, are fully paid and non-assessable, have been issued in all material respects in compliance with United States federal and state securities laws, and conform to the description thereof contained in the Registration Statement, the Prospectus and the Prospectus Supplement. All of the Companys options and warrants have been duly authorized and validly issued and were issued in all material respects in compliance with United States federal and state securities laws. None of the outstanding shares of Common Stock was issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company. There are no authorized or outstanding shares of capital stock, options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company or any Subsidiary other than those described above or accurately described in the Registration
Subsidiary Capitalization. All the outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and, except to the extent set forth in the Registration Statement, the Prospectus and the Prospectus Supplement, are owned by the Company directly or indirectly through one or more wholly-owned Subsidiaries, free and clear of any claim, lien, encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party.
In the event of a change in capitalization, the Committee shall make appropriate adjustments in accordance with [Section 4.3] of the Plan to reflect the change in capitalization, provided that any such additional Shares or additional or different shares or securities reflected in any such adjustment shall remain subject to the restrictions in this Agreement.
Section # Termination, Suspension or Modification of Plan. Provided no employee member of the Board participates as provided by [Section 3.2(b)] hereof, the Board may at any time terminate, suspend or modify this Plan, except that the Board shall not, without the authorization of the holders of a majority of the outstanding shares present or represented and entitled to vote at a duly held meeting of the Company’s shareholders, effect any change (other than through adjustment for changes in capitalization as hereinabove provided) which # increases the aggregate number of Shares underlying Grants; # changes the class of Eligible Grantees eligible to be awarded Grants; # lowers the minimum Option Price or Base Amount or otherwise materially increases the benefits accruing to Grantees through Grants under this Plan; # renders any member of the Committee eligible to receive a Grant while serving thereon except as provided by this Plan; # extends the effective period of this Plan; or # removes the restrictions set forth in [Section 3.2(b)]. No termination, suspension or modification of this Plan shall adversely affect any right acquired by any Grantee or any Successor under the terms of a Grant awarded before the date of such termination, suspension or modification, unless such Grantee or Successor shall consent; but it shall be conclusively presumed that any adjustment for changes in capitalization as provided in [Section 5.3] does not adversely affect any such right.
"Share Pool" means the number of shares authorized for issuance under paragraph 4.1, as adjusted for awards and payouts under paragraph 4.2 and as adjusted for changes in corporate capitalization under paragraph 4.3.
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