Adjustment of Exercise Rate. The Exercise Rate with respect to a class of Junior Shares shall be subject to adjustment from time to time upon the occurrence of the events enumerated in this Section 12. (a) If at any time after February 1, 1998 the Company: (1) pays a dividend or makes a distribution on any of its Capital Stock in Junior Shares or other shares of its Capital Stock; (2) subdivides, reclassifies or recapitalizes any class of Junior Shares into a greater number of shares; (3) combines, reclassifies or recapitalizes any class of Junior Shares of Junior Shares into a smaller number of shares; (4) issues by reclassification of any class of Junior Shares any shares of its Capital Stock (excluding any such reclassification in connection with a consolidation or merger); then the Exercise Rate with respect to a class of Junior Shares in effect immediately prior to such action shall be proportionately adjusted if necessary so that the holder of any Contingent Warrant thereafter exercised may receive the aggregate number and kind of shares of Capital Stock of the Company which such holder would have owned immediately following such action if such Contingent Warrant had been exercised immediately prior to such action (without giving effect to the Cashless Option). Any adjustment required by this subsection (a) shall be made successively immediately after the record date, in the case of a dividend or distribution, or the effective date, in the case of a subdivision, combination, reclassification or recapitalization, to allow the purchase of such aggregate number and kind of shares. (b) In case after February 1, 1998 the Company shall issue rights, options or warrants to all holders of a class of Junior Shares entitling them to subscribe for or purchase shares of such class at a price per share less than the Current Market Price per share of such class on the date fixed for the determination of shareholders entitled to receive such rights, options or warrants, the Exercise Rate with respect to such class of Junior Shares in effect at the opening of business on the day following the date fixed for such determination shall be increased by dividing such Exercise Rate by a fraction of which the numerator shall be the number of shares of such class outstanding at the close of business on the date fixed for such determination plus the number of shares 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 and the denominator shall be the number of shares of such class outstanding at the close of business on the date fixed for such determination plus the number of shares so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this subsection (b), the number of Junior Shares of a class 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 such shares. The Company will not issue any rights, options or warrants in respect of any Junior Shares held in the treasury of the Company. (c) In case after February 1, 1998 the Company shall, by dividend or otherwise, distribute to all holders of a class of Junior Shares 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 subsection (b) of this Section 12, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in subsection (a) of this Section 12 and (iv) any merger or consolidation to which subsection (i) of this Section 12 applies), the Exercise Rate with respect to such class of Junior Shares shall be adjusted so that the same shall equal the rate determined by dividing such Exercise Rate in effect immediately prior to the close of business on the date fixed for the determination of shareholders entitled to receive such distribution by a fraction of which the numerator shall be the Current Market Price per share of such class on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of such class and the denominator shall be such Current Market Price per share of such class, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such distribution. (d) In case after February 1, 1998 the Company shall, by dividend or otherwise, distribute to all holders of a class of Junior Shares cash (excluding any cash that is distributed upon a merger or consolidation to which subsection (i) of this Section 12 applies or as part of a distribution referred to in paragraph (c) of this Section) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions to all holders of such Junior Shares made exclusively in cash within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this subsection (d) has been made and (II) the aggregate of any cash plus the fair market value (as determined by the 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 Company or any of its subsidiaries for all or any portion of such class of Junior Shares concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to subsection (c) of this Section has been made (the "combined cash and tender amount") exceeds 10% of the product of the Current Market Price per share of such class on the date for the determination of holders of such shares of such class entitled to receive such distribution times the number of such shares of such class 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 Exercise Rate with respect to such class of Junior Shares shall be adjusted so that the same shall equal the rate determined by dividing such Exercise Rate in effect immediately prior to the close of business on the date fixed for determination of the shareholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the Current Market Price per share of such class 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 such aggregate current market price divided by (y) the number of shares of such class outstanding on such date for determination and (ii) the denominator of which shall be equal to the Current Market Price per share of such class on such date for determination. (e) In case after February 1, 1998 a tender offer made by the Company or any subsidiary for all or any portion of any class of Junior Shares shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to shareholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender offer by the Company or any subsidiary for all or any portion of the such class of Junior Shares expiring within the 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this subsection (e) has been made and (II) the aggregate amount of any cash distributions to all holders of such class of Junior Shares within 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to subsection (d) of this Section 12 has been made (the "combined tender and cash amount") exceeds 10% of the product of the Current Market Price per share of such class as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of such shares of such class outstanding (including any tendered shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Exercise Rate with respect to such class of Junior Shares shall be adjusted so that the same shall equal the rate determined by dividing such Exercise Rate in effect immediately prior to the close of business on the date of the Expiration Time by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the Current Market Price per share of such of such class on the date of the Expiration Time multiplied by (II) the number of such shares of such class outstanding (including any tendered shares) on the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the Current Market Price per share of such class as of the Expiration Time multiplied by (B) the number of shares of such class outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares"). (f) No adjustment in the Exercise Rate with respect to a class of Junior Shares need be made unless the adjustment would require an increase or decrease of at least 1% in such Exercise Rate; provided, however, that any adjustments that are not made shall be carried forward and taken into account in any subsequent adjustment. Upon each adjustment of an Exercise Rate with respect to a class of Junior Shares, the corresponding Exercise Price with respect to the Warrant Shares of such class shall be adjusted by multiplying such Exercise Price in effect immediately prior to such adjustment by the Exercise Rate in effect immediately prior to such adjustment and dividing the product thereof by the Exercise Rate resulting from such adjustment. All calculations under this Section 12 shall be made to the nearest 1/1,000th of a share or nearest 1/100th of a cent, as the case may be. (g) Whenever the Exercise Rate with respect to a class of Junior Shares and the corresponding Exercise Price are adjusted, the Company shall provide the notices required by Section 15 hereof. (h) The Company from time to time may increase the Exercise Rate with respect to a class of Junior Shares, and decrease the corresponding Exercise Price, by any amount for any period of time if the period is at least 20 days and if the increase or decrease, as the case may be, is irrevocable during the period. Whenever an Exercise Rate is increased and corresponding Exercise Price decreased, the Company shall mail to the registered Contingent Warrant holders a notice of the increase and related decrease. The Company shall mail the notice at least 15 days before the date such increased Exercise Rate and decreased Exercise Price takes effect. The notice shall state the increased Exercise Rate and decreased Exercise Price and the period it will be in effect. Any increase in an Exercise Rate and corresponding decrease in an Exercise Price made pursuant to this subsection (h) shall not change or adjust any Exercise Rate or Exercise Price otherwise in effect, or as used for calculations, for purposes of subsections (a) through (c) of this Section 12. (i) Except as provided below, in the event that the Company consolidates with, merges with or into, or sells all or substantially all of its property and assets to another Person, each Contingent Warrant thereafter shall, if and when exercisable, entitle the holder thereof to receive upon exercise thereof and payment of the Exercise Price the number of shares of capital stock or other securities or property which the holder would have received immediately after such transaction if such holder had exercised the Contingent Warrant immediately before the effective date of the transaction (whether or not the Contingent Warrants were then exercisable and without giving effect to the Cashless Exercise option), assuming (to the extent applicable) that such holder (i) was not a Person with which the Company consolidated or merged with or into or which merged with or into the Company or to which such conveyance, sale, transfer or lease was made, as the case may be ("Constituent Person") or an Affiliate of a Constituent Person to such transaction, (ii) made no election with respect thereto and (iii) was treated alike with the plurality of non-electing holders. If the Company merges or consolidates with, or sells all or substantially all the property and assets of the Company to, another Person and, in connection therewith, consideration to the holders of Junior Shares in exchange for their shares is payable solely in cash, or in the event of the dissolution, liquidation or winding-up of the Company, then the holder of each Contingent Warrant, if then exercisable, will be entitled to receive distributions on an equal basis with the holders of Junior Shares or other securities issuable upon exercise of such Contingent Warrant, as if such Contingent Warrant had been exercised immediately prior to such event, less the Exercise Price therefor. Upon receipt of such payment, if any, the Contingent Warrants will expire and the rights of the holders thereof will cease. In case of any such merger, consolidation or sale of assets, the surviving or acquiring person and, in the event of any dissolution, liquidation or winding-up of the Company, the Company shall deposit promptly with the Warrant Agent the funds, if any, to pay to the holders of the Contingent Warrants. After such funds and, in the case of Certificated Warrants, the surrendered Warrant Certificates are received, the Warrant Agent shall make payment by delivering a check in such amount as is appropriate (or, in the case of consideration other than cash, such other consideration as is appropriate) to such person or persons as it may be directed in writing by the holders surrendering such Contingent Warrants. Concurrently with the consummation of such transaction, the entity formed by or surviving any such consolidation or merger if other than the Company, or the person to which such sale or conveyance shall have been made, shall enter into a supplemental Warrant Agreement so providing and further providing for adjustments in the future which shall be nearly equivalent as may be practicable to the adjustments provided for in this Section 12. If the issuer of securities deliverable upon exercise of Contingent Warrants under the supplemental Warrant Agreement is an affiliate of the formed, surviving, transferee or lessee corporation, that issuer shall join in the supplemental Warrant Agreement. If this subsection (i) applies with respect to a transaction, subsections (a) through (e) of this Section 12 shall not apply with respect to such transaction. (j) The Warrant Agent shall have no duty to determine when an adjustment under this Section 12 should be made, how it should be made or what it should be. The Warrant Agent shall have no duty to determine whether any provisions of a supplemental Warrant Agreement executed pursuant to subsection (i) of this Section 12 are correct. The Warrant Agent makes no representation or warranty as to the validity or value of any securities or assets issued upon exercise of Contingent Warrants or pursuant to
Appears in 1 contract
Adjustment of Exercise Rate. [TO BE REVISED AS APPROPRIATE -- --------------------------- The number of shares of Stock purchasable upon the exercise of each Warrant (the "Exercise Rate with respect to a class of Junior Shares Rate") shall be subject to adjustment from time to time upon the occurrence of the events enumerated as provided in this Section 12Section.
(a) If at any time after February 1, 1998 the Company:
Company shall (1i) pays pay a dividend in or makes make a distribution on any of its Capital Stock in Junior Shares or other shares of its Capital Stock;
capital stock, whether in shares of Stock or shares of its capital stock of any other class, (2ii) subdivides, reclassifies or recapitalizes any class subdivide its outstanding shares of Junior Shares Stock into a greater number of shares;
shares of Stock, (3iii) combines, reclassifies or recapitalizes any class combine its outstanding shares of Junior Shares of Junior Shares Stock into a smaller number of shares;
shares of Stock or (4iv) issues by reclassification of any class of Junior Shares issue any shares of its Capital capital stock in a reclassification of the Stock (excluding including any such reclassification in connection with a consolidation or mergermerger in which the Company is the continuing corporation); then , the Exercise Rate with respect to a class of Junior Shares in effect immediately prior to such action thereto and the exercise privilege shall be proportionately adjusted if necessary so that the holder Holder of any Contingent each Warrant thereafter exercised may shall be entitled to receive the aggregate kind and number and kind of shares of Capital Stock or other securities of the Company which such holder Holder would have owned or been entitled to receive immediately following after the happening of any of the events described above, had such action if such Contingent Warrant had been exercised immediately prior to the happening of such action (without giving effect event or any record date with respect thereto. An adjustment made pursuant to the Cashless Option). Any adjustment required by this subsection paragraph (a) shall be made successively become effective immediately after the effective date of such event, retroactive to immediately prior to the opening of business on the day following the record date, in the case of a dividend or distributionif any, or the effective date, in the case of a subdivision, combination, reclassification or recapitalization, to allow the purchase of for such aggregate number and kind of sharesevent.
(b) In case after February 1, 1998 the Company shall issue rights, options rights or warrants to all holders of a class shares of Junior Shares its Stock, without any charge to such holders, entitling them to subscribe for or purchase shares of such class Stock at a price per share less than the Current Market Price current market price (determined as provided in paragraph (e) of this Section 3.2) per share of such class Stock on the date fixed for the determination of shareholders stockholders entitled to receive such rights, options rights or warrants, the Exercise Rate with respect to such class of Junior Shares in effect at the opening of business on the day following the date fixed for such determination shall be increased adjusted by dividing such Exercise Rate by a fraction of which (i) the numerator shall be the number of shares of such class Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Stock which the aggregate of the offering price of the total number of shares of Stock so offered for subscription or purchase would purchase at such Current Market Price current market price and (ii) the denominator shall be the number of shares of such class Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Stock so offered for subscription or purchase. Such adjustment shall be made whenever such rights or warrants are issued, such increase retroactive to become effective immediately after prior to the opening of business on the day following the date fixed for such determination. If at the end of the period during which such rights or warrants are exercisable, not all such rights and warrants shall have been exercised, the Exercise Rate shall be immediately readjusted to what it would have been if the adjustment made pursuant to the foregoing formula had been based upon the number of options or warrants which were actually exercised. For the purposes of this subsection paragraph (b), the number of Junior Shares shares of a class 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 such sharesCompany. The Company will not issue any rights, options rights or warrants in respect of any Junior Shares shares of Stock held in the treasury of the Company.
(c) In case after February 1, 1998 the Company shall, by dividend or otherwise, distribute to all holders of a class shares of Junior Shares Stock evidences of its indebtedness, shares of any class of Capital Stock, indebtedness or other property assets (including securities, but excluding (i) any rights, options or warrants referred to in subsection (b) of this Section 12, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in subsection paragraph (a) or (b) of this Section 12 and (iv) 3.2 or any merger dividend or consolidation to which subsection (i) distribution paid in cash out of this Section 12 appliesnet income for the then current or the immediately preceding fiscal year or out of capital surplus), the Exercise Rate with respect to such class of Junior Shares shall be adjusted so that the same shall equal the rate determined by dividing such the Exercise Rate in effect immediately prior to the close of business on the date fixed for the determination of shareholders stockholders entitled to receive such distribution by a fraction of which (i) the numerator shall be the Current Market Price current market price (determined as provided in paragraph (e) of this Section 3.2) per share of such class Stock on the date fixed for such determination less the then fair market value (as determined by the Board of DirectorsDirectors of the Company or any duly authorized committee thereof, in the exercise of its sole and absolute discretion and whose determination shall be conclusive and described in a Board Resolutionconclusive) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of such class Stock and (ii) the denominator shall be such Current Market Price current market price per share of Stock. Such adjustment shall be made whenever such class, such adjustment distribution is made and shall be made retroactive to become effective immediately prior to the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such distribution.
(d) In case after February 1, 1998 the Company shall, by dividend or otherwise, distribute to all holders of a class of Junior Shares cash (excluding any cash that is distributed upon a merger or consolidation to which subsection (i) of this Section 12 applies or as part of a distribution referred to in paragraph (c) of this Section) in an aggregate amount that, combined together with (I) the aggregate amount event of any other cash distributions to all holders of such Junior Shares made exclusively in cash within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this subsection (d) has been made and (II) the aggregate of any cash plus the fair market value (as determined by the 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 Company capital reorganization or any of its subsidiaries for all or any portion of such class of Junior Shares concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to subsection (c) of this Section has been made (the "combined cash and tender amount") exceeds 10% reclassification of the product of the Current Market Price per share of such class on the date for the determination of holders of such shares of such class entitled to receive such distribution times the number of such shares of such class outstanding on such date Stock (the "aggregate current market price"), then, and except as provided in each such case, immediately after the close of business on such date for determination, the Exercise Rate with respect to such class of Junior Shares shall be adjusted so that the same shall equal the rate determined by dividing such Exercise Rate in effect immediately prior to the close of business on the date fixed for determination of the shareholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the Current Market Price per share of such class 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 such aggregate current market price divided by (y) the number of shares of such class outstanding on such date for determination and (ii) the denominator of which shall be equal to the Current Market Price per share of such class on such date for determination.
(e) In case after February 1, 1998 a tender offer made by the Company or any subsidiary for all or any portion of any class of Junior Shares shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to shareholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender offer by the Company or any subsidiary for all or any portion of the such class of Junior Shares expiring within the 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this subsection (e) has been made and (II) the aggregate amount of any cash distributions to all holders of such class of Junior Shares within 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to subsection (d) of this Section 12 has been made (the "combined tender and cash amount") exceeds 10% of the product of the Current Market Price per share of such class as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of such shares of such class outstanding (including any tendered shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Exercise Rate with respect to such class of Junior Shares shall be adjusted so that the same shall equal the rate determined by dividing such Exercise Rate in effect immediately prior to the close of business on the date of the Expiration Time by a fraction (i) the numerator of which shall be equal to (A) the product of (I) the Current Market Price per share of such of such class on the date of the Expiration Time multiplied by (II) the number of such shares of such class outstanding (including any tendered shares) on the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the Current Market Price per share of such class as of the Expiration Time multiplied by (B) the number of shares of such class outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(f) No adjustment in the Exercise Rate with respect to a class of Junior Shares need be made unless the adjustment would require an increase or decrease of at least 1% in such Exercise Rate; provided, however, that any adjustments that are not made shall be carried forward and taken into account in any subsequent adjustment. Upon each adjustment of an Exercise Rate with respect to a class of Junior Shares, the corresponding Exercise Price with respect to the Warrant Shares of such class shall be adjusted by multiplying such Exercise Price in effect immediately prior to such adjustment by the Exercise Rate in effect immediately prior to such adjustment and dividing the product thereof by the Exercise Rate resulting from such adjustment. All calculations under this Section 12 shall be made to the nearest 1/1,000th of a share or nearest 1/100th of a cent, as the case may be.
(g) Whenever the Exercise Rate with respect to a class of Junior Shares and the corresponding Exercise Price are adjusted, the Company shall provide the notices required by Section 15 hereof.
(h) The Company from time to time may increase the Exercise Rate with respect to a class of Junior Shares, and decrease the corresponding Exercise Price, by any amount for any period of time if the period is at least 20 days and if the increase or decrease, as the case may be, is irrevocable during the period. Whenever an Exercise Rate is increased and corresponding Exercise Price decreased, the Company shall mail to the registered Contingent Warrant holders a notice of the increase and related decrease. The Company shall mail the notice at least 15 days before the date such increased Exercise Rate and decreased Exercise Price takes effect. The notice shall state the increased Exercise Rate and decreased Exercise Price and the period it will be in effect. Any increase in an Exercise Rate and corresponding decrease in an Exercise Price made pursuant to this subsection (h) shall not change or adjust any Exercise Rate or Exercise Price otherwise in effect, or as used for calculations, for purposes of subsections paragraphs (a) through (c) above), any Holder of this Section 12.
(i) Except as provided below, in the event that the Company consolidates with, merges with or into, or sells all or substantially all of its property and assets to another Person, each Contingent Warrant thereafter shall, if and when exercisable, entitle the holder thereof to receive Warrants upon exercise thereof and payment shall be entitled to receive, in lieu of the Exercise Price Stock to which he or she would have become entitled upon exercise immediately prior to such reorganization or reclassification, the number shares (of shares of capital stock any class or classes) or other securities or property which the holder would have received immediately after such transaction if such holder had exercised the Contingent Warrant immediately before the effective date of the transaction (whether or not the Contingent Warrants were then exercisable and without giving effect to the Cashless Exercise option), assuming (to the extent applicable) that such holder (i) was not a Person with which the Company consolidated or merged with or into or which merged with or into the Company or to which such conveyance, sale, transfer or lease was made, as the case may be ("Constituent Person") or an Affiliate of a Constituent Person to such transaction, (ii) made no election with respect thereto and (iii) was treated alike with the plurality of non-electing holders. If the Company merges or consolidates with, or sells all or substantially all the property and assets of the Company to, another Person and, in connection therewith, consideration to the holders of Junior Shares in exchange for their shares is payable solely in cash, that he or in the event of the dissolution, liquidation or winding-up of the Company, then the holder of each Contingent Warrant, if then exercisable, will be she would have been entitled to receive distributions on an equal basis with at the holders of Junior Shares same aggregate Exercise Price upon such reorganization or other securities issuable upon exercise of such Contingent Warrant, as reclassification if such Contingent Warrant his or her Warrants had been exercised immediately prior to such event, less the Exercise Price therefor. Upon receipt of such payment, if any, the Contingent Warrants will expire and the rights of the holders thereof will cease. In case of any such merger, consolidation or sale of assets, the surviving or acquiring person and, in the event of any dissolution, liquidation or winding-up of the Company, the Company shall deposit promptly with the Warrant Agent the funds, if any, to pay to the holders of the Contingent Warrants. After such funds and, in the case of Certificated Warrants, the surrendered Warrant Certificates are received, the Warrant Agent shall make payment by delivering a check in such amount as is appropriate (or, in the case of consideration other than cash, such other consideration as is appropriate) to such person or persons as it may be directed in writing by the holders surrendering such Contingent Warrants. Concurrently with the consummation of such transaction, the entity formed by or surviving any such consolidation or merger if other than the Company, or the person to which such sale or conveyance shall have been made, shall enter into a supplemental Warrant Agreement so providing and further providing for adjustments in the future which shall be nearly equivalent as may be practicable to the adjustments provided for in this Section 12. If the issuer of securities deliverable upon exercise of Contingent Warrants under the supplemental Warrant Agreement is an affiliate of the formed, surviving, transferee or lessee corporation, that issuer shall join in the supplemental Warrant Agreement. If this subsection (i) applies with respect to a transaction, subsections (a) through (e) of this Section 12 shall not apply with respect to such transactionthereto.
(j) The Warrant Agent shall have no duty to determine when an adjustment under this Section 12 should be made, how it should be made or what it should be. The Warrant Agent shall have no duty to determine whether any provisions of a supplemental Warrant Agreement executed pursuant to subsection (i) of this Section 12 are correct. The Warrant Agent makes no representation or warranty as to the validity or value of any securities or assets issued upon exercise of Contingent Warrants or pursuant to
Appears in 1 contract