Exercise of Warrants (a) During the period specified in Section 2.2, the Warrants may be exercised to purchase a whole number of Warrant Securities in registered form by providing certain information as set forth on the reverse side of the Warrant Certificate and by paying in full, in lawful money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds] the Warrant Price for each Warrant Security with respect to which a Warrant is being exercised to the Warrant Agent at its corporate trust office, provided that such exercise is subject to receipt within five business days of such payment by the Warrant Agent of the Warrant Certificate with the form of election to purchase Warrant Securities set forth on the reverse side of the Warrant Certificate properly completed and duly executed. The date on which payment in full of the Warrant Price is received by the Warrant Agent shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed to be the date on which the Warrant is exercised; provided, however, that if, at the date of receipt of such Warrant Certificates and payment in full of the Warrant Price, the transfer books for the Warrant Securities purchasable upon the exercise of such Warrants shall be closed, no such receipt of such Warrant Certificates and no such payment of such Warrant Price shall be effective to constitute the person so designated to be named as the holder of record of such Warrant Securities on such date, but shall be effective to constitute such person as the holder of record of such Warrant Securities for all purposes at the opening of business on the next succeeding day on which the transfer books for the Warrant Securities purchasable upon the exercise of such Warrants shall be opened, and the certificates for the Warrant Securities in respect of which such Warrants are then exercised shall be issuable as of the date on such next succeeding day on which the transfer books shall next be opened, and until such date the Company shall be under no duty to deliver any certificate for such Warrant Securities. The Warrant Agent shall deposit all funds received by it in payment of the Warrant Price in an account of the Company maintained with it and shall advise the Company by telephone at the end of each day on which a payment for the exercise of Warrants is received of the amount so deposited to its account. The Warrant Agent shall promptly confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as practicable, advise the Company of (i) the number of Warrant Securities with respect to which Warrants were exercised, (ii) the instructions of each holder of the Warrant Certificates evidencing such Warrants with respect to delivery of the Warrant Securities to which such holder is entitled upon such exercise, (iii) delivery of Warrant Certificates evidencing the balance, if any, of the Warrants for the remaining Warrant Securities after such exercise, and (iv) such other information as the Company shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant, the Company shall issue to or upon the order of the holder of the Warrant Certificate evidencing such Warrant the Warrant Securities to which such holder is entitled, in fully registered form, registered in such name or names as may be directed by such holder. If fewer than all of the Warrants evidenced by such Warrant Certificate are exercised, the Company shall execute, and an authorized officer of the Warrant Agent shall manually countersign and deliver, a new Warrant Certificate evidencing Warrants for the number of Warrant Securities remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer involved in the issue of the Warrant Securities, and in the event that any such transfer is involved, the Company shall not be required to issue or deliver any Warrant Security until such tax or other charge shall have been paid or it has been established to the Company’s satisfaction that no such tax or other charge is due.
(e) Prior to the issuance of any Warrants there shall have been reserved, and the Company shall at all times through the Expiration Date keep reserved, out of its authorized but unissued Warrant Securities, a number of shares sufficient to provide for the exercise of the Warrants.
Terms of Warrants; Exercise of Warrants (a) Subject to the terms of this Warrant Agreement, each Warrant holder shall have the right, which may be exercised in whole or in part, at any time and from time to time, beginning on the date of original issuance of the Warrant pursuant to the terms of this Warrant Agreement and ending at 5:00 p.m., New York City time, on the date that is the seven year anniversary of the Effective Date (the “Expiration Date”), to exercise each Warrant and receive from the Company the number of fully paid and nonassessable Warrant Shares which the holder may at the time be entitled to receive on exercise of such Warrants upon payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company shall promptly provide the Warrant Agent with written notice of the Expiration Date. After 5:00 p.m., New York City time, on the Expiration Date, the Warrants will become wholly void and of no value. Prior to the delivery of any shares of Common Stock that the Company shall be obligated to deliver upon proper exercise of the Warrants, the Company shall comply with all applicable federal and state laws, rules and regulations which require action to be taken by the Company. Subject to the terms and conditions set forth herein, the holder may exercise the Warrants by:
(i) providing written notice of such election (“Warrant Exercise Notice”) to exercise the Warrant to the Company and the Warrant Agent at the addresses set forth in Section 23 no later than 5:00 p.m., New York City time, on the Expiration Date, which Warrant Exercise Notice shall be substantially in the form set forth either (x) in Exhibit A hereto for holders who hold Book-Entry Warrants, properly completed and executed by the holder, or (y) in Exhibit B hereto for holders who hold interest in Warrants through the book-entry facilities of the Depository, by or through persons that are direct participants in the Depository;
(ii) delivering no later than 5:00 p.m., New York City time, on the business day immediately prior to the Settlement Date, such Warrants to the Warrant Agent by book-entry transfer through the facilities of the Depository, if such Warrants are represented by a Global Warrant Certificate; and
(iii) paying to the Company (x) the applicable Exercise Price multiplied by the number of shares of Common Stock in respect of which any Warrants are being exercised or (y) in the case of a Cashless Exercise, paying the required consideration in the manner set forth in Section 9(b), in each case, together with any applicable taxes and charges. To the extent a Warrant Exercise Notice is delivered in respect of a Warrant no later than 5:00 p.m., New York City time, on the Expiration Date, but the deliveries and payments specified in clause (ii) and (iii) above are effected thereafter but no later than 5:00 p.m., New York City time, on the business day immediately prior to the Settlement Date, the Warrants shall nonetheless be deemed exercised prior to the Expiration Date for the purposes of this Warrant Agreement.
(b) Provided the Common Stock is then listed or admitted for trading on a national securities exchange or an over-the-counter market or comparable system, and subject to the provisions of this Warrant Agreement, the holder shall have the right, in lieu of paying the Exercise Price in cash, to instruct the Company to reduce the number of shares of Common Stock issuable pursuant to the exercise of the Warrants (the “Cashless Exercise”) in accordance with the following formula: N = the number of shares of Common Stock to be subtracted from the aggregate number of shares of Common Stock issuable upon exercise of the Warrants; P = the aggregate Exercise Price which would otherwise be payable in cash for all of the shares of Common Stock for which the Warrants are being exercised; and M = the Market Price of a share of Common Stock determined as of the day immediately preceding the day the Warrant Exercise Notice is delivered to the Warrant Agent. If the Exercise Price exceeds the Market Price at the time of exercise, then no shares of Common Stock will be issuable via the Cashless Exercise. The number of shares of Common Stock to be issued on such exercise will be determined by the Company (with written notice thereof to the Warrant Agent) using the formula set forth in this Section 9(b). The Warrant Agent shall have no duty or obligation to investigate or confirm whether the Company’s determination of the number of shares of Common Stock to be issued on such exercise, pursuant to this Section 9(b), is accurate or correct, nor shall the Warrant Agent have any duty or obligation to take any action with regard to such warrant exercise prior to being notified by the Company of the relevant number of shares of Common Stock to be issued.
(c) Subject to the adjustments set forth in Section 13 and Section 14 hereof, each Warrant, when exercised, will entitle the holder thereof to purchase one share of Common Stock at the Exercise Price then in effect for such share of Common Stock. Each Warrant not exercised pursuant to this Warrant Agreement prior to the Expiration Date shall become void and all rights thereunder and all rights in respect thereof under this Warrant Agreement shall cease as of 5:00 p.m., New York City time, on the Expiration Date.
(d) Unless exercised pursuant to a Cashless Exercise, the Exercise Price shall be payable to the Company in lawful money of the United States of America either by certified or official bank or bank cashier’s check made payable to the order of the Company (or if agreed to in the sole and absolute discretion of the Company, by wire transfer in immediately available funds to an account arranged with the Company prior to exercise).
(e) Any exercise of a Warrant pursuant to the terms of this Warrant Agreement shall be irrevocable and shall constitute a binding agreement between the holder and the Company, enforceable in accordance with its terms.
(f) The Warrant Agent shall:
(i) examine all Warrant Exercise Notices and all other documents delivered to it by or on behalf of holders as contemplated hereunder to ascertain whether, on their face, such Warrant Exercise Notices and any such other documents have been executed and completed in accordance with their terms;
(ii) inform the Company of and cooperate with and assist the Company in resolving any reconciliation problems between the Warrant Exercise Notices received and delivery of Warrants to the Warrant Agent’s account;
(iii) advise the Company, no later than two business days after receipt of a Warrant Exercise Notice, of (x) the receipt of such Warrant Exercise Notice and the number of Warrants exercised in accordance with the terms and conditions of this Warrant Agreement, (y) the instructions with respect to delivery of the shares of Common Stock of the Company deliverable upon such exercise, subject to the timely receipt from the Depository of the necessary information, and (z) such other information as the Company shall reasonably require;
(iv) subject to the Common Stock being made available to the Warrant Agent by or on behalf of the Company for delivery to the Depository, liaise with the Depository and endeavor to effect such delivery to the relevant accounts at the Depository in accordance with its requirements; and
(v) pay to the Company all funds received by the Warrant Agent in payment of the aggregate Exercise Price.
(g) All questions as to the validity, form and sufficiency (including time of receipt) of a Warrant exercise shall be determined by the Company in its sole discretion, which determination shall be final and binding. The Warrant Agent shall incur no liability for or in respect of and, except to the extent such liability arises from the Warrant Agent’s negligence, willful misconduct or bad faith (each as determined by a final, non-appealable judgment of a court of competent jurisdiction), shall be indemnified and held harmless by the Company for acting or refraining from acting upon, or as a result of such determination by the Company. The Company reserves the right to reject any and all Warrant Exercise Notices not in proper form or for which any corresponding agreement by the Company to exchange would, in the opinion of the Company, be unlawful. Such determination by the Company shall be final and binding on the holders, absent manifest error. Moreover, the Company reserves the absolute right to waive any of the conditions to the exercise of Warrants or defects in Warrant Exercise Notices with regard to any particular exercise of Warrants. Neither the Company nor the Warrant Agent shall be under any duty to give notice to the holders of the Warrants of any irregularities in any exercise of Warrants, nor shall it incur any liability for the failure to give such notice.
(h) As soon as reasonably practicable after the exercise of any Warrant (and in any event not later than 10 business days thereafter), the Company shall issue, or otherwise deliver, in authorized denominations to or upon the order of the holder of the Warrants, either:
(i) if such holder holds the Warrants being exercised through the Depository’s book-entry transfer facilities, by same-day or next-day credit to the Depository for the account of such holder or for the account of a participant in the Depository the number of shares of Common Stock to which such holder is entitled, in each case registered in such name and delivered to such account as directed in the Warrant Exercise Notice by such holder or by the direct participant in the Depository through which such holder is acting; or
(ii) if such holder holds the Warrants being exercised in the form of Book-Entry Warrants, a book-entry interest in the shares of Common Stock registered on the books of the transfer agent for the Company’s Common Stock (such agent, in such capacity, as may from time to time be appointed by the Company, the “Transfer Agent”) or, at the Company’s option, by delivery to the address designated by such holder in its Warrant Exercise Notice of a physical certificate or certificates representing the number of Warrant Shares to which such holder is entitled, in fully registered form, registered in such name or names as may be directed by such holder. Such Warrant Shares shall be deemed to have been issued and any person so designated to be named therein shall be deemed to have become a holder of record of such Warrant Shares as of the close of business on the date of the delivery thereof. If fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the exercise of Warrants are exercised at any time prior to the Expiration Date, the Warrant Agent shall cause a notation to be made to the records maintained by the Depository, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellon, as custodian for the Depository, the Warrant Agent will cause such custodian to make an appropriate notation on the Global Warrant Certificate to reflect such reduction in Warrants represented by the Global Warrant Certificate. The Person in whose name any certificate or certificates for the Warrant Shares are to be issued (or such Warrant Shares are to be registered, in the case of a book-entry transfer) upon exercise of a Warrant shall be deemed to have become the holder of record of such Warrant Shares on the date such Warrant Exercise Notice is delivered.
(i) As provided in Section 16 hereof, no fractional shares of Common Stock shall be issued upon exercise of any Warrants.
(j) If all of the Warrants evidenced by a Global Warrant Certificate have been exercised, such Global Warrant Certificate shall be cancelled by the Warrant Agent. Such cancelled Global Warrant Certificate shall then be disposed of by or at the direction of the Company in accordance with applicable law. The Warrant Agent shall (x) advise an authorized representative of the Company as directed by the Company by the end of each day or on the next business day following each day on which Warrants were exercised, of (i) the number of shares of Common Stock issued upon exercise of a Warrant, (ii) the notation to the records of the Depository reflecting the balance, if any, of the shares of Common Stock issuable after such exercise of the Warrant and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company all funds received by the Warrant Agent in payment of the aggregate Exercise Price. The Warrant Agent shall confirm such information to the Company in writing as promptly as practicable.
(k) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunder.
Subscription of Shares For the sum of U.S.$25,000, which the Company acknowledges receiving in cash, the Company hereby issues the Shares to the Subscriber, and the Subscriber hereby subscribes for the Shares from the Company, subject to forfeiture, on the terms and subject to the conditions set forth in this Agreement. Concurrently with the Subscriber’s execution of this Agreement, the Company shall register the Shares in the name of the Subscriber on the register of members of the Company. All references in this Agreement to Shares being forfeited shall take effect as surrenders for no consideration of such shares as a matter of Cayman Islands law.
Term of Warrants; Exercise of Warrants (a) Subject to the terms of this Agreement, the Holder shall have the right, at any time during the period commencing on the "Exercisability Date" (hereinafter defined), and ending at 5:00 p.m., New York, New York time, on December 26, 2006 (the "Termination Date"), to purchase from the Company up to the number of Shares which the Holder may at the time be entitled to purchase pursuant to this Agreement and the portion of the Warrant (or certificate therefor) then held by it, upon surrender to the Company, at its principal office in Dallas, Texas, of the certificate evidencing the portion of the Warrant to be exercised together with the purchase form duly filled in and signed, and upon payment to the Company of the portion of the Warrant Price, as defined in and determined in accordance with the provisions of Sections 6 and 7 hereof, allocable to the number of Shares with respect to which such portion of the Warrant is then exercised. Payment of the Warrant Price shall be made (i) in cash, by cashier's check or by wire transfer or (ii) through the surrender of debt, preferred equity securities or Common Stock of the Company having a principal amount, liquidation preference, or current market price, as the case may be, equal to the aggregate Warrant Price to be paid (the Company will pay the accrued interest or dividends on such surrendered debt, preferred equity securities, or Common Stock in cash at the time of surrender notwithstanding the stated terms thereof) or (iii) through "cashless" or "net-issue" exercise provided in Section 3(b) below. For purposes of this Section 3, the "Exercisability Date" shall mean the earliest to occur of the following dates: (i) December 27, 1999; (ii) the date when a Change of Control Notice (as defined in Section 7.4) is given; (iii) the date that certain Consulting and Strategic Services Agreement dated December 27, 1996 by and between the Company and EUF ▇▇▇▇▇▇ ▇.▇. is terminated (with or without cause); or (iv) the date upon which a registered public offering under the Securities Act of 1933, as amended, of equity interests in the Company is made pursuant to a registration statement on Form S-1 or a successor form, but in no event earlier than June 27, 1998 in the event such offering occurs prior to such date.
(b) The holder of the Warrant may also exercise the Warrant in a "cashless" or "net-issue" exercise by delivery to the Company of (a) the written notice described in Section 3(a) above, (b) the Warrant and (c) written notice that the holder elects to make payment of the Warrant Price, in full or in part, by surrender of its right to purchase certain shares of Common Stock pursuant to the Warrant. For purposes of this Section 3(b), the value of the surrender of the right to purchase a share of Common Stock shall be attributed a value equal to (i) the current market price per share of Common Stock minus (ii) the then Warrant Price per share of Common Stock. If the determination of current market price per share of Common Stock is to be made for a "cashless" or "net-issue" exercise in connection with an initial public offering of Common Stock, the current market price per share of Common Stock shall equal the per share offering price without deductions for any compensation, discounts or expenses paid or incurred by the Company in connection with such offering. Otherwise, the current market price shall be determined in accordance with the provisions of Section 7.1(f) hereof.
(c) Upon such surrender of the Warrant (or certificate therefor) and payment of such Warrant Price as aforesaid, or after "cashless" or "net issue" exercise, the Company shall, within five (5) business days, issue and cause to be delivered to or upon the written order of the Holder, and in such name or names as the Holder may designate, certificate or certificates for the number of full Shares so purchased upon the exercise of the Warrant, together with cash, as provided in Section 8 hereof, with respect to any fractional Shares otherwise issuable upon such surrender and the cash, property and other securities to which the Holder is entitled pursuant to the provisions of Section 7. The Warrant shall be exercisable, at the election of the Holder, either in whole or from time to time in part and, in the event that the certificate evidencing the Warrant is exercised with respect to less than all of the Shares specified therein at any time prior to the Termination Date, a new certificate evidencing the remaining Warrant shall be issued by the Company.
Terms and Exercise of Warrants (a) Subject to the terms of this Agreement, the Warrants shall be exercisable and each Holder shall have the right, which may be exercised at any time from and including October 1, 2009 and prior to or on November 30, 2009 (the “Expiration Date”), unless extended or accelerated per Section 2(c) below, to purchase from the Bank the number of Shares which the Holder may at the time be entitled to purchase on exercise of such Warrants, as identified on the Master Warrant Certificate. The Bank shall provide each Holder with a warrant exercise form (the "Exercise Form") prior to or contemporaneous with the commencement of the warrant exercise period.
(b) Warrants may only be exercised for the purchase of whole Shares. Warrants may be exercised upon delivery to the Bank of a completed Exercise Form and upon payment to the Bank of the Warrant Exercise Price (as defined herein), for the number of Shares in respect of which such Warrants are then exercised. Payment of the aggregate Warrant Exercise Price shall be made by certified or official bank check, wire transfer or debit from an account at the Bank. Upon such delivery of the Exercise Form and payment of the Warrant Exercise Price as aforesaid, the Bank shall issue and cause to be delivered as promptly as possible to or upon the written order of the Holder, and in such name or names as the Holder may designate, a certificate or certificates for the number of full Shares so purchased upon the exercise of such Warrants. Such certificate or certificates shall be deemed to have been issued and any person so designated to be named therein shall be deemed to have become a holder of record of such Shares as of the date of the delivery of the Exercise Form and payment of the Warrant Exercise Price, as aforesaid.
(c) The Bank may accelerate or extend the Expiration Date at any time, in its discretion to a date not earlier than 60 days following mailing of notice. Notice of the acceleration or extension, as applicable, shall contain the accelerated Expiration Date (the “Accelerated Expiration Date”) or the extended Expiration date (the "Extended Expiration Date"), as applicable.