Adjustments of Number and Kind. of Shares Purchasable and -------------------------------------------------------- Purchase Price. The initial number of shares of Common Stock purchasable upon -------------- exercise of a Warrant and the Purchase Price shall be subject to adjustment from time to time upon the occurrence, after the Effective Date, of the following events: (A) In case the Company shall (1) pay a dividend in, or make a distribution of, shares of Common Stock or of the Company's capital stock convertible into Common Stock on its outstanding Common Stock, (2) subdivide its outstanding shares of Common on Stock into a greater number of such shares or (3) combine its outstanding shares of Common Stock into a smaller number of such shares, the total number of shares of Common Stock and the number of shares of capital stock convertible into Common Stock purchasable upon the exercise of each Warrant outstanding immediately prior thereto shall be adjusted so that the holder of any Warrant Certificate thereafter surrendered for the purchase of Common Stock shall be entitled to receive at the same aggregate Common Stock Purchase Price the number of shares of Common Stock and the number of shares of the Company's capital stock convertible into Common Stock which he would have owned or have been entitled to receive immediately following any of the events described above had such Warrant been exercised in full immediately prior to any such event. An adjustment made pursuant to this Subsection shall, in the case of a stock dividend or distribution, become effective as of the record date therefor and, in the case of a subdivision or combination, be made as of the effective date thereof. If, as a result of an adjustment made pursuant to this Subsection, the holder of any Warrant thereafter surrendered for exercise shall become entitled to receive shares of two or more classes of capital stock of the Company, the Board of Directors of the Company (whose determination shall be conclusive and shall be evidenced by a Board resolution filed with the Warrant Agent) shall determine the allocation of the adjusted Purchase Price between or among shares of such classes of capital stock (B) In the event of any adjustment of the total number of shares of Common Stock purchasable upon the exercise of the then outstanding Warrants pursuant to Subsection (A) above, the Purchase Price per share applicable to each such outstanding Warrant shall be adjusted to be the amount resulting from dividing the number of shares (including fractional share interests) covered by such Warrant immediately after such adjustment into the total amount payable upon exercise of such Warrant in full immediately prior to such adjustment. (C) In case the Company shall issue rights or warrants to all holders of its Common Stock entitling them (for a period expiring within forty-five days after the record date mentioned below) to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share of Common Stock (as defined in Subsection (F) below) at the record date mentioned below, the Purchase Price shall be adjusted so that the same shall equal the price determined by multiplying the Purchase Price in effect immediately prior thereto by a fraction, of which the numerator shall be the number of shares of Common Stock outstanding on the record date mentioned below plus the number of additional shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock offered for subscription or purchase would purchase at such current market price per share of Common Stock, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of shares of Common Stock offered for subscription or purchase. Such adjustments shall be made whenever such rights or warrants are issued, and shall become effective as of the record date for the determination of stockholders entitled to receive such rights or warrants. (D) In case the Company shall distribute to all holders of its Common Stock shares of its capital stock (other than Common Stock or shares of capital stock convertible into Common Stock), evidences of its indebtedness or assets, or rights or warrants (excluding those referred to in Subsection (C) above) to subscribe for or purchase such shares, evidences of indebtedness or assets, then in each such case the Purchase Price in effect thereafter shall be determined by multiplying the Purchase Price in effect immediately prior thereto by a fraction, of which the numerator shall be the total number of outstanding shares of Common Stock multiplied by the current market price per share of Common Stock (as determined in accordance with the provisions of Subsection (F) below) on the record date mentioned below, less the fair market value (as determined by the Board of Directors of the Company, whose determination shall be conclusive and evidenced by a Board resolution filed with the Warrant Agent) of the capital stock, assets or evidences of indebtedness or of such rights or warrants so distributed to all such holders, and of which the denominator shall be the total number of outstanding shares of Common Stock multiplied by such current market price per share of Common Stock. Such adjustments shall be made whenever any such distribution is made, and shall become effective as of the record date for the determination of stockholders entitled to receive such distribution. (E) In the event of any capital reorganization or any reclassification of the Common Stock (except as provided in Subsection (A) above or Subsection (I) below), any holder of Warrants upon exercise thereof shall be entitled to receive, in lieu of the Common Stock to which he would have become entitled upon exercise immediately prior to such reorganization or reclassification, the shares (of any class or classes) or other securities or property of the Company that he would have been entitled to receive at the same aggregate Purchase Price upon such reorganization or reclassification if his Warrants had been exercised immediately prior thereto and in any such case, appropriate provision (as determined by the Board of Directors of the Company, whose determination shall be conclusive and shall be evidenced by a Board resolution filed with the Warrant Agent) shall be made for the application of this Section 8 with respect to the rights and interests thereafter of the holders of Warrants (including but not limited to the allocation of the adjusted Purchase Price between or among shares of classes of capital stock) to the end that this Section 8 (including the adjustments of the number of shares of Common Stock or other securities purchasable) and the Purchase Price thereof shall thereafter be reflected, as nearly as reasonably practicable in all subsequent exercises of the Warrants for any shares or securities or other property thereafter deliverable upon the exercise of the Warrants. (F) For the purpose of any computation under Subsections (C) and (D) above, the current market price per share of Common Stock at any date shall be deemed to be the average of the daily closing market prices, if the Common Stock is traded on a national securities exchange or the NASDAQ National Market, or the average of the last daily bid and asked quotation if traded on NASDAQ, for the ten consecutive trading days immediately prior to the day in question. (G) No adjustment in the Purchase Price under this Section 8 shall be made unless such adjustment would require an increase or decrease of at least one per cent (1%) in the Purchase Price; provided, however, that any adjustments which -------- ------- by reason of this Subsection are not required to be made shall be carried forward and taken into account in any subsequent adjustment; and provided, -------- further, that any adjustments which are so carried forward shall be made no ------- later than the earlier of (i) three years after the date of the particular event on account of which an adjustment would be required or (ii) the date as to which the aggregate adjustments not previously made would require a total increase or decrease of 1% in the Purchase Price. All calculations under this Section 8 shall be made to the nearest cent or to the nearest one hundredth of a share, as the case may be. (H) Whenever the number of shares of Common Stock or other securities purchasable upon exercise of a Warrant or the Purchase Price is adjusted as provided in this Section 8, the Company will promptly file with the Warrant Agent a certificate signed by the Chairman of the Board, the President or a Vice President of the Company and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company setting forth the number and kind of shares purchasable and the Purchase Price, as so adjusted, stating that such adjustments in the number or kind of shares or other securities, or in the Purchase Price, conform to the requirements of this Section 8, and setting forth a brief statement of the facts accounting for such adjustments. Such certificates shall be conclusive evidence of the correctness of such adjustments. Promptly after receipt of such certificate, the Company, or the Warrant Agent at the Company's request, will mail a brief summary thereof (to be supplied by the Company) to the registered holders of the Warrants; provided, however, that failure to file or to give any notice required -------- ------- under this Subsection, or any defect therein, shall not affect the legality or validity of any such adjustments under this Section 8; and, provided, further, --------- ------- that, where appropriate, such notice may be given in advance and included as part of the notice required to be given pursuant to Section 13 hereof. (I) In case of any consolidation or merger of the Company with or into another corporation (other than a consolidation or merger which does not result in any reclassification or change of the outstanding Common Stock), or in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, the corporation formed by such consolidation or merger or the corporation which shall have acquired such assets, as the case may be, shall execute and deliver to the Warrant Agent a supplemental warrant agreement providing that the holder of each Warrant then outstanding shall have the right thereafter (until the expiration of such Warrant) to receive, upon exercise of such Warrant, the kind and amount of shares of stock and other securities and property receivable upon such consolidation, merger, sale or transfer by a holder of the number of shares of Common Stock of the Company for which such Warrant might have been exercised immediately prior to such consolidation, merger, sale or transfer. Such supplemental warrant agreement shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section. The above provision of this Subsection shall similarly apply to successive consolidations, mergers, sales or transfers. The Warrant Agent shall not be under any responsibility to determine the correctness of any provisions contained in any such supplemental warrant agreement requiring to either the kind or amount of shares of stock or securities or property purchasable by holders of Warrant Certificates upon the exercise of their Warrants after any such consolidation, merger, sale or transfer or to any adjustment to be made with respect thereto, but subject to the provisions of Section 21 hereof, may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, a certificate of a firm of independent certified public accountants with respect thereto. (J) Irrespective of any adjustments in the Purchase Price or in the number or kind of shares issuable upon exercise of Warrants, Warrant Certificates theretofore or thereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Warrant Certificates initially issued pursuant to this Warrant Agreement. (K) The Company may retain a firm of independent public accountants of recognized standing, which may be the firm regularly retained by the Company, selected by the Board of Directors of the Company or the Executive Committee of said Board, and not disapproved by the Warrant Agent, to make any computation required under this Section, and a certificate signed by such firm shall be conclusive evidence of the correctness of any computation made under this Section. (L) For the purpose of this Section, the term "Common Stock" shall mean (i) the class of stock designated as Common Stock in the Certificate of Incorporation of the Company, as amended, at the Effective Date or (ii) any other class of stock resulting from successive changes or reclassifications of such Common Stock consisting solely of changes in par value, or from par value to no par value or from no par value to par value. In the event that at any time as a result of an adjustment made pursuant to this Section, the holder of any Warrant thereafter surrendered for exercise shall become entitled to receive any shares of capital stock of the Company other than shares of the Common Stock, thereafter the number of such other shares so receivable upon exercise of any Warrant shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in this Section, and all other provisions of this Agreement with respect to the Common Stock shall apply on like terms to any such other shares.
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Adjustments of Number and Kind. of Shares Purchasable and -------------------------------------------------------- Purchase Price. The initial number of shares of Common Stock purchasable upon -------------- exercise of a Warrant and the Purchase Price shall be subject to adjustment from time to time upon the occurrence, after the Effective Datedate hereof, of the following events:
(A) In case the Company shall (1) pay a dividend in, or make a distribution of, shares of Common Stock or of the Company's capital stock convertible into Common Stock on its outstanding Common Stock, (2) subdivide its outstanding shares of Common on Stock into a greater number of such shares or (3) combine its outstanding shares of Common Stock into a smaller number of such shares, the total number of shares of Common Stock and the number of shares of capital stock convertible into Common Stock purchasable upon the exercise of each Warrant outstanding immediately prior thereto shall be adjusted so that the holder of any Warrant Certificate thereafter surrendered for the purchase of Common Stock shall be entitled to receive at the same aggregate Common Stock Purchase Price the number of shares of Common Stock and the number of shares of the Company's capital stock convertible into Common Stock which he would have owned or have been entitled to receive immediately following any of the events described above had such Warrant been exercised in full immediately prior to any such event. An adjustment made pursuant to this Subsection shall, in the case of a stock dividend or distribution, become effective as of the record date therefor and, in the case of a subdivision or combination, be made as of the effective date thereof. If, as a result of an adjustment made pursuant to this Subsection, the holder of any Warrant thereafter surrendered for exercise shall become entitled to receive shares of two or more classes of capital stock of the Company, the Board of Directors of the Company (whose determination shall be conclusive and shall be evidenced by a Board resolution filed with the Warrant Agent) shall determine the allocation of the adjusted Adjusted Purchase Price between or among shares of such classes of capital stock.
(B) In the event of any adjustment of the total number of shares of Common Stock purchasable upon the exercise of the then outstanding Warrants pursuant to Subsection (A) above, the Purchase Price per share applicable to each such outstanding Warrant shall be adjusted to be the amount resulting from dividing the number of shares (including fractional share interests) covered by such Warrant immediately after such adjustment into the total amount payable upon exercise of such Warrant in full immediately prior to such adjustment.
(C) In case the Company shall issue rights or warrants to all holders of its Common Stock entitling them (for a period expiring within forty-five days after the record date mentioned below) to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share of Common Stock (as defined in Subsection (F) below) at the record date mentioned below, the Purchase Price shall be adjusted so that the same shall equal the price determined by multiplying the Purchase Price in effect immediately prior thereto by a fraction, of which the numerator shall be the number of shares of Common Stock outstanding on the record date mentioned below plus the number of additional shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock offered for subscription or purchase would purchase at such current market price per share of Common Stock, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of shares of Common Stock offered for subscription or purchase. Such adjustments shall be made whenever such rights or warrants are issued, and shall become effective as of the record date for the determination of stockholders entitled to receive such rights or warrants.
(D) In case the Company company shall distribute to all holders of its Common Stock shares of its capital stock (other than Common Stock or shares of capital stock convertible into Common Stock), evidences of its indebtedness or assets, or rights or warrants (excluding those referred to in Subsection (C) above) to subscribe for or purchase such shares, evidences of indebtedness or assets, then in each such case the Purchase Price in effect thereafter shall be determined by multiplying the Purchase Price in effect immediately prior thereto by a fraction, of which the numerator shall be the total number of outstanding shares of Common Stock multiplied by the current market price per share of Common Stock (as determined in accordance with the provisions of Subsection (F) below) on the record date mentioned below, less the fair market value (as determined by the Board of Directors of the Company, whose determination shall be conclusive and evidenced by a Board resolution filed with the Warrant Agent) of the capital stock, assets or evidences of indebtedness or of such rights or warrants so distributed to all such holders, and of which the denominator shall be the total number of outstanding shares of Common Stock multiplied by such current market price per share of Common Stock. Such adjustments shall be made whenever any such distribution is made, and shall become effective as of the record date for the determination of stockholders entitled to receive such distribution.
(E) In the event of any capital reorganization or any reclassification of the Common Stock (except as provided in Subsection (A) above or Subsection (I) below), any holder of Warrants upon exercise thereof shall be entitled to receive, in lieu of the Common Stock to which he would have become entitled upon exercise immediately prior to such reorganization or reclassification, the shares (of any class or classes) or other securities or property of the Company that he would have been entitled to receive at the same aggregate Purchase Price upon such reorganization or reclassification if his Warrants had been exercised immediately prior thereto thereto; and in any such case, appropriate provision (as determined by the Board of Directors of the Company, whose determination shall be conclusive and shall be evidenced by a Board resolution filed with the Warrant Agent) shall be made for the application of this Section 8 10 with respect to the rights and interests thereafter of the holders of Warrants (including but not limited to the allocation of the adjusted Purchase Price between or among shares of classes of capital stock) ), to the end that this Section 8 10 (including the adjustments of the number of shares of Common Stock or other securities purchasable) purchasable and the Purchase Price thereof thereof) shall thereafter be reflected, as nearly as reasonably practicable practicable, in all subsequent exercises of the Warrants for any shares or securities or other property thereafter deliverable upon the exercise of the Warrants.
(F) For the purpose of any computation under Subsections (C) and (D) above, the current market price per share of Common Stock at any date shall be deemed to be the average of the daily closing market prices, if the Common Stock is traded on a national securities exchange or the NASDAQ National Marketnational market system, or the average of the last daily bid and asked quotation if traded on NASDAQ, for the ten consecutive trading days immediately prior to the day in question.
(G) No adjustment in the Purchase Price under this Section 8 10 shall be made unless such adjustment would require an increase or decrease of at least one per cent (1%) in the Purchase Price; provided, however, that any adjustments which -------- ------- by reason of this Subsection are not required to be made shall be carried forward and taken into account in any subsequent adjustment; and provided, -------- further, that any adjustments which are so carried forward shall be made no ------- later than the earlier of (i) three years after the date of the particular event on account of which an adjustment would be required or (ii) the date as to which the aggregate adjustments not previously made would require a total increase or decrease of 1% in the Purchase Price. All calculations under this Section 8 10 shall be made to the nearest cent or to the nearest one one-hundredth of a share, as the case may be.
(H) Whenever the number of shares of Common Stock or other securities purchasable upon exercise of a Warrant or the Purchase Price is adjusted as provided in this Section 810, the Company will promptly file with the Warrant Agent a certificate signed by the Chairman of the Board, the President or a Vice President of the Company and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company setting forth the number and kind of shares purchasable and the Purchase Price, as so adjusted, stating that such adjustments in the number or kind of shares or other securities, or in the Purchase Price, conform to the requirements of this Section 810, and setting forth a brief statement of the facts accounting for such adjustments. Such certificates shall be conclusive evidence of the correctness of such adjustments. Promptly after receipt of such certificate, the Company, or the Warrant Agent at the Company's request, will mail a brief summary thereof (to be supplied by the Company) to the registered holders of the Warrants; provided, however, that failure to file or to give any notice required -------- ------- under this Subsection, or any defect therein, shall not affect the legality or validity of any such adjustments under this Section 810; and, provided, and provided further, --------- ------- that, where appropriate, such notice may be given in advance and included as part of the notice required to be given pursuant to Section 13 15 hereof.
(I) In case of any consolidation or merger of the Company with or into another corporation (other than a consolidation or merger which does not result in any reclassification or change of the outstanding Common Stock), or in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, the corporation formed by such consolidation or merger or the corporation which shall have acquired such assets, as the case may be, shall execute and deliver to the Warrant Agent a supplemental warrant agreement providing that the holder of each Warrant then outstanding shall have the right thereafter (until the expiration of such Warrant) to receive, upon exercise of such Warrant, the kind and amount of shares of stock and other securities and property receivable upon such consolidation, merger, sale or transfer by a holder of the number of shares of Common Stock of the Company for which such Warrant might have been exercised immediately prior to such consolidation, merger, sale or transfer. Such supplemental warrant agreement shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section. The above provision of this Subsection shall similarly apply to successive consolidations, mergers, sales or transfers. The Warrant Agent shall not be under any responsibility to determine the correctness of any provisions contained in any such supplemental warrant agreement requiring relating to either the kind or amount of shares of stock or securities or property purchasable by holders of Warrant Certificates upon the exercise of their Warrants after any such consolidation, merger, sale or transfer or to any adjustment to be made with respect thereto, but subject to the provisions of Section 21 23 hereof, may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, a certificate of a firm of independent certified public accountants with respect thereto.
(J) Irrespective of any adjustments in the Purchase Price or in the number or kind of shares issuable upon exercise of Warrants, Warrant Certificates theretofore or thereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Warrant Certificates initially issued issuable pursuant to this Warrant Agreement.
(K) The Company may retain a firm of independent public accountants of recognized standing, which may be the firm regularly retained by the Company, selected by the Board of Directors of the Company or the Executive Committee of said Board, and not disapproved by the Warrant Agent, to make any computation required under this Section, and a certificate signed by such firm shall be conclusive evidence of the correctness of any computation made under this Section.
(L) For the purpose of this Section, the term "Common Stock" shall mean (i) the class of stock designated as Common Stock in the Certificate of Incorporation of the Company, as amended, at the Effective Date date of this Agreement or (ii) any other class of stock resulting from successive changes or reclassifications of such Common Stock consisting solely of changes in par value, or from par value to no par value or from no par value to par value. In the event that at any time as a result of an adjustment made pursuant to this Section, the holder of any Warrant thereafter surrendered for exercise shall become entitled to receive any shares of capital stock of the Company other than the shares of the Common Stock, thereafter the number of such other shares so receivable upon exercise of any Warrant shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in this Section, and all other provisions of this Agreement Agreement, with respect to the Common Stock shall apply on like terms to any such other shares.
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