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.
Appears in 2 contracts
Sources: Assumption Agreement (Consolidated Communications Holdings, Inc.), Warrant Agreement (Fairpoint Communications Inc)
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, each Warrant holder Holder shall have the right, which may be exercised in whole or in part, commencing at any time and from time to time, beginning the opening of business on the date of original issuance of the Warrant pursuant to the terms of this Warrant Agreement Exercisability Date and ending at until 5:00 p.m., New York City time, on the date that is the seven year anniversary of the Effective Expiration 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 Holder may at the time be entitled to receive on exercise of such Warrants upon and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company ; provided, however, that no Holder shall promptly provide be entitled to exercise such Holder's Warrants at any time, unless, at the time of exercise, (i) a registration statement under the Securities Act relating to the Warrant Agent with written notice Shares has been filed with, and declared effective by, the Commission, and no stop order suspending the effectiveness of such registration statement has been issued by the Commission or (ii) the issuance of the Expiration DateWarrant Shares is permitted pursuant to an exemption from the registration requirements of the Securities Act. After Subject to the provisions of the following paragraph of this Section 10, each Warrant not exercised prior to 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 such time. No adjustments as to dividends will be made upon exercise of the Warrants. The Company shall give notice not less than 90, and not more than 120, days prior to the Expiration Date to the Holders of all then outstanding Warrants to the effect that the Warrants will terminate and become void as of 5:00 p.m., New York City time, on the Expiration Date. If the Company fails to give such notice, the Warrants will not expire until 90 days after the Company gives such notice; provided, however, in no event will Holders be entitled to any damages or other remedy for the Company's failure to give such notice other than any such extension.
(d) Unless A Warrant may be exercised pursuant upon surrender to the Company at the principal office of the Warrant Agent of the certificate or certificates evidencing the Warrant to be exercised with the form of election to purchase on the reverse thereof duly completed and signed, which signature shall be guaranteed by a Cashless Exercisebank or trust company having an office or correspondent in the United States or a broker or dealer which is a member of a registered securities exchange or the National Association of Securities Dealers, Inc., and upon payment to the Warrant Agent for the account of the Company of the Exercise Price as adjusted as herein provided for each of the Warrant Shares in respect of which such Warrant is then exercised. Payment of the aggregate Exercise Price shall be payable made by Federal wire transfer to the account designated by the Company in lawful money of the United States of America either or by certified or official bank or bank cashier’s check made check, payable to the order of the Company (or if agreed Company. In the alternative, each Holder may exercise its right 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 receive Warrant Shares on 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 facenet basis, such Warrant Exercise Notices and that without the exchange of 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. Moreoverfunds, 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 Holder receives that 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 otherwise issuable upon exercise of its Warrants less that number of Warrant Shares shall be deemed having a fair market value equal to the aggregate Exercise Price that would otherwise 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 paid 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 Holder 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 being issued. For purposes of the Warrants evidenced by a Global Warrant Certificate have been exercisedforegoing sentence, 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 "fair market value" 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.
Appears in 2 contracts
Sources: Warrant Agreement (Winsloew Furniture Inc), Warrant Agreement (Winston Furniture Co of Alabama Inc)
Terms of Warrants; Exercise of Warrants. Each Adelphi Warrant entitles the registered owner thereof to purchase one share of Common Stock (aas adjusted), at a purchase price per share of $2.72 (the "Exercise Price") at any time from the first anniversary of the effective date of the Registration Statement relating to such initial public offering until 5:00 p.m. New York City time, on the date six years from the effective date of such Registration Statement, (the "Expiration Date"). The Exercise Price and the shares of Common Stock issuable upon exercise of Adelphi Warrants are subject to adjustment upon the occurrence of certain events, pursuant to the provisions of Section 6 of this Agreement. Subject to the terms provisions of this Warrant Agreement, each Warrant holder Holder shall have the right, which may be exercised as set forth 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”)such Adelphi Warrants, to exercise each Warrant and receive purchase from the Company (and the Company shall issue and sell to such Holder) 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 specified in agent, of the such Adelphi Warrants, with the Company shall comply with all applicable federal and state lawsform of election to agent, 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 Adelphi Warrants, with the form of election (“Warrant Exercise Notice”) to exercise the Warrant purchase attached thereto duly completed and signed, and upon payment 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 DepositoryExercise Price, by or through persons that are direct participants as adjusted in accordance with the Depository;
(ii) delivering no later than 5:00 p.m.provisions of Section 6 of this Agreement, 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 for the number of shares of Common Stock Warrant Shares in respect of which any such Adelphi Warrants are being exercised or (y) in the case then exercised. Payment 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 such 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 may 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 made 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 or 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 company. No adjustment shall be made for any dividends on any shares of the Company, by wire transfer in immediately available funds to an account arranged with the Company prior to exercise).
(e) Any stock issuable upon exercise of a Warrant pursuant to the terms an Adelphi Warrant. Upon each surrender of this Warrant Agreement shall be irrevocable Adelphi Warrants 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 Price 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)aforesaid, the Company shall issue, or otherwise deliver, in authorized denominations issue and cause to be delivered with all reasonable dispatch to or upon the written 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 Holder of such holder or for Adelphi Warrants and (subject to receipt of evidence of compliance with the account provisions of a participant in the Depository the number Section 9 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
(iithis Agreement) 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 such Holder may be directed by designate, a certificate or certificates for the number of full Warrant Shares so purchased upon the exercise of such holderAdelphi Warrants, together with cash, as provided in Section 7 of this Agreement, in respect of any fractional Warrant Shares otherwise issuable upon surrender. Such Warrant Shares 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 the holder of record of such Warrant Shares as of the close of business on the date of the delivery surrender of such Adelphi Warrants and payment of the exercise Price as aforesaid. The rights of purchase represented by Adelphi Warrants shall be exercisable, at the election of the Holders thereof. If fewer , either in full or from time to time in part and, if and Adelphi Warrant is exercised in respect of less 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 (purchasable on such exercise, a new Adelphi Warrant 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 Adelphi Warrants shall be issued upon exercise of any Warrants.
(j) If all of for 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 remaining number of shares of Common Stock issued upon exercise of a Warrant, (ii) Warrant Shares specified in 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 Adelphi 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 practicableso surrendered.
(k) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunder.
Appears in 2 contracts
Sources: Warrant Agreement (Educational Video Conferencing Inc), Warrant Agreement (Educational Video Conferencing Inc)
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 Certificates pursuant to the terms of this Warrant Agreement and ending at prior to 5:00 p.m., p.m. New York City timeTime, on the date that is the seven year anniversary of the Effective Date August 25, 2008 (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 and 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.In addition, New York City time, on the Expiration Date, the Warrants will become wholly void and of no value. Prior 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 hereof12, 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 the Expiration Date.
(c) The holder of Warrants may, until 5:00 p.m. New York City Time, on the Expiration Date, exercise such holder’s right to purchase Warrant Shares by:
(i) providing written notice of such election (a “Warrant Exercise Notice”) to exercise such Warrants to the Warrant Agent at the address set forth in Section 20 hereof, “Re: Calpine Corporation Warrant Exercise”, by overnight courier, received by the Warrant Agent no later than 5:00 p.m. New York City Time, on the Expiration Date, which Warrant Exercise Notice shall be in the form of an election to purchase Warrant Shares substantially in the form set forth either (x) in Exhibit A hereto, properly completed and executed by the holder, provided that such written notice may only be submitted if such Warrants are evidenced by Definitive Warrant Certificates; or (y) in Exhibit B hereto, properly completed and executed by the holder, provided that such written notice may only be submitted if such Warrants are evidenced by Global Warrant Certificates held through the book-entry facilities of the Depositary, by or through persons that are direct participants in the Depositary;
(ii) delivering, either (x) if such Warrants are evidenced by Global Warrant Certificates, no later than 5:00 p.m. New York City Time, on the business day immediately prior to the Settlement Date (as defined below) such Warrants to the Warrant Agent by book-entry transfer through the facilities of the Depositary or (y) if such Warrants are evidenced by Definitive Warrant Certificates, no later than 5:00 p.m., New York City time, on the business day immediately prior to the Settlement Date, the Warrant Certificates evidencing such Warrants to the Warrant Agent; and
(iii) paying, to Computershare, no later than 5:00 p.m., New York City time, on the Settlement Date, the applicable Exercise Price multiplied by the number of Warrant Shares in respect of which such Warrants are being exercised (the “Exercise Amount”), together with any applicable taxes and governmental charges. The date three business days after a Warrant Exercise Notice is delivered is referred to for all purposes under this Warrant Agreement as the “Settlement Date”. To the extent a Warrant Exercise Notice is delivered in respect of Warrant prior to 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 Settlement Date, the Warrants shall be nonetheless deemed exercised prior to the Expiration Date for the purposes of this Agreement.
(d) Unless exercised pursuant to a Cashless Exercise, the The Exercise Price Amount 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 by the Warrant Certificates to ascertain whether, on their face, such Warrant Exercise Notices and any such other documents have been executed and completed in accordance with their termsterms and the terms of the Warrant Certificate;
(ii) where a Warrant Exercise Notice or other document appears on its face to have been improperly completed or executed or some other irregularity in connection with the exercise of the Warrant exists, the Warrant Agent shall endeavor to inform the appropriate parties (including the person submitting such instrument) of the need for fulfillment of all requirements, specifying those requirements which appear to be unfulfilled;
(iii) 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;
(iiiiv) advise the Company, no later than two five 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 Depositary of the necessary information, and (z) such other information as the Company shall reasonably require;; and
(ivv) subject to the Common Stock being made available to the Warrant Agent by or on behalf of the Company for delivery to the DepositoryDepositary, liaise with the Depository Depositary and endeavor to effect such delivery to the relevant accounts at the Depository Depositary 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 gross negligence, willful misconduct or bad faith (each as determined by a final, non-appealable judgment of a court of competent jurisdiction)faith, shall be indemnified and held harmless by the 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.the
Appears in 1 contract
Sources: Warrant Agreement (Calpine Corp)
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, each Warrant holder Holder shall have the right, which may be exercised in whole or in part, commencing at any time and from time to time, beginning the opening of business on the date of original issuance of the Warrant pursuant to the terms of this Warrant Agreement Exercise Date and ending at until 5:00 p.m., New York City time, time on the date that is the seven year anniversary of the Effective Expiration 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 Holder may at the time be entitled to receive on exercise of such Warrants upon and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company ; provided that no Holder shall promptly provide be entitled to exercise such Holder's Warrants at any time, unless, at the time of exercise (A) (i) a registration statement under the Securities Act relating to the Warrant Agent with written notice Shares has been filed with, and declared effective by, the Commission, and no stop order suspending the effectiveness of such registration statement has been issued by the Commission or (ii) the issuance of the Expiration DateWarrant Shares is permitted pursuant to an exemption from the registration requirements of the Securities Act; (B) such Warrant Shares are qualified for sale or exempt from qualification under the applicable securities laws of the states in which the various holders of the Warrants or other Persons to whom it is proposed that the Warrant Shares be issued on exercise of the Warrants reside; and (C) a Black Out Period or Suspension Notice (as defined in the Warrant Registration Rights Agreement) is not in effect. After Each Warrant not exercised prior to 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 28 and all rights thereunder and all rights in respect thereof under this Warrant Agreement shall cease as of such time. No adjustments as to dividends will be made upon exercise of the Warrants. The Company shall give notice not less than 90, and not more than 120, days prior to the Expiration Date to the Holders of all then outstanding Warrants to the effect that the Warrants will terminate and become void as of the 5:00 p.m., New York City time, time on the Expiration Date.
(d) Unless exercised pursuant . If the Company fails to a Cashless Exercisegive such notice, the Exercise Price shall be payable to Warrants will not expire until 90 days after the Company gives such notice, provided in lawful money of the United States of America either by certified no event will Holders be entitled to any damages 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 other remedy for 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 's failure to give such noticenotice other than any such extension.
(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.
Appears in 1 contract
Sources: Warrant Agreement (Leap Wireless International Inc)
Terms of Warrants; Exercise of Warrants. (a) Subject Each Series A Warrant not exercised prior 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 March 15, 2010 (the “Series A 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 such time. Each Series B Warrant not exercised prior to 5:00 p.m., New York City time, on March 15, 2008 (the “Series B Expiration Date”) shall become void and all rights thereunder and all rights in respect thereof under this Agreement shall cease as of such time.
(db) Unless exercised pursuant Subject to a Cashless Exercisethe terms of this Agreement, each Series A Warrant shall be exercisable, in full and not in part, at the election of the Holder thereof, during the period commencing at the opening of business on the Issue Date and until 5:00 p.m., New York City time on the Series A Expiration Date, and shall entitle the Holder thereof to receive from the Company one (1) fully paid and nonassessable shares of Common Stock upon exercise of such Series A Warrant and payment of the Series A Exercise Price shall be payable to the Company then in lawful money of the United States of America either effect in cash, by wire transfer or by certified or official bank or bank cashier’s check made payable to the order of the Company (or if agreed Company. Subject to the terms of this Agreement, each Series B Warrant shall be exercisable, in full and not in part, at the sole and absolute discretion election of the CompanyHolder thereof, during the period commencing at the opening of business on the Issue Date and until 5:00 p.m., New York City time on the Series B Expiration Date, and shall entitle the Holder thereof to receive from the Company one (1) fully paid and nonassessable shares of Common Stock upon exercise of such Series B Warrant and payment of the Series B Exercise Price then in effect in cash, by wire transfer or by certified or official check payable to the order of the Company.
(c) In order to exercise all or any of the Warrants, the Holder thereof must deliver to the Warrant Agent at the Corporate Trust Office (i) the Warrant Certificates evidencing such Warrants, (ii) the form of election to purchase on the reverse thereof duly filled in immediately available funds and signed, which signature shall be medallion guaranteed by an institution which is a member of a Securities Transfer Association recognized signature guarantee program, and (iii) payment to an the Warrant Agent for the account arranged with of the Company prior of the then-current Series A Exercise Price (in the case of exercise of the Series A Warrants) or Series B Exercise Price (in the case of exercise of the Series B Warrants), in the manner set forth in Section 4.01(b) for the number of Warrant Shares in respect of which the Warrants are being exercised.
(d) No fractional Warrant Shares are to exercise)be issued upon any exercise of a Warrant, but rather cash in lieu of fractional shares shall be delivered to the Holder as provided in Section 6.02.
(e) Any exercise of If fewer than all the Warrants represented by 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 faceCertificate are exercised, such Warrant Exercise Notices Certificate shall be surrendered and any such other documents have been a new Warrant Certificate of the same series and for the number of Warrants which were not exercised shall be executed and completed in accordance with their terms;
(ii) inform by 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 delivered 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 countersign 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 new 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 formCertificate, registered in such name or names as may be directed in writing by such holder. Such Warrant Shares the Holder, and 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 deliver the close of business on the date of the delivery thereof. If fewer than all of the Warrants evidenced by a Global new Warrant Certificate to the Person or Persons entitled to receive the same.
(f) All Warrant Certificates 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 Certificates shall then be disposed of by or at the direction of Warrant Agent in a manner satisfactory to the Company in accordance with applicable lawCompany. The Warrant Agent shall (x) advise an authorized representative of account promptly to the Company as directed by the Company by the end of each day or on the next business day following each day on which with respect to 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company all funds monies received by the Warrant Agent in payment for the purchase of the aggregate Exercise Price. The Warrant Agent shall confirm Shares through the exercise of such information to the Company in writing as promptly as practicableWarrants.
(kg) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunderhereunder available for inspection by the Holders during normal business hours at the Corporate Trust Office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may reasonably request.
(h) Notwithstanding anything to the contrary set forth in this Agreement or in any Warrant Certificate, no Holder may exercise a Warrant if the Company determines that the issuance of Warrant Shares to the Holder of such Warrant upon the exercise thereof would cause the percentage of shares of Common Stock then outstanding that is owned by Aliens to exceed the Permitted Percentage. The Company may in its discretion require any Holder that seeks to exercise a Warrant to submit such proof of citizenship as the Company may require in order to determine that the issuance of Warrant Shares to the Holder of such Warrant upon the exercise thereof would not cause the percentage of shares of Common Stock then outstanding that is owned by Aliens to exceed the Permitted Percentage.
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, each Warrant holder Holder shall have the right, which may be exercised in whole or in part, at any time and from time to time, beginning in whole or in part, commencing on the date of original issuance of the Warrant pursuant to the terms of this Warrant Agreement hereof 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 Holder may at the time be entitled to receive on exercise of such Warrants upon and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company ; provided, however, that no Warrant Holder shall promptly provide be entitled to exercise such Holder's Warrants at any time, unless, at the time of exercise, (i) a registration statement under the Securities Act relating to the Warrant Agent with written notice Shares has been filed with, and declared effective by, the Commission, and no stop order suspending the effectiveness of such registration statement has been issued by the Commission or (ii) the issuance of the Expiration DateWarrant Shares is permitted pursuant to an exemption from the registration requirements of the Securities Act. After Subject to the provisions of the following paragraph of this Section 6, each Warrant not exercised prior to 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 such time. No adjustments as to dividends will be made upon exercise of the Warrants. The Company shall give notice not less than 90, and not more than 120, days prior to the Expiration Date to the Holders of all then outstanding Warrants to the effect that the Warrants will terminate and become void as of 5:00 p.m., New York City time, on the Expiration Date.
(d) Unless exercised pursuant . If the Company fails to a Cashless Exercisegive such notice, the Warrants will not expire until 90 days after the Company gives such notice, provided, however, in no event will Holders be entitled to any damages or other remedy for the Company's failure to give such notice other than any such extension. A Warrant may be exercised upon surrender to the Company of the certificate or certificates evidencing the Warrant to be exercised with the form of election to purchase on the reverse thereof properly completed and signed, which signature shall be guaranteed by a bank or trust company having an office or correspondent in the United States or a broker or dealer which is a member of a registered securities exchange or the National Association of Securities Dealers, Inc., and upon payment to the Company of the Exercise Price as adjusted as herein provided, for each of the Warrant Shares in respect of which such Warrants are then exercised. Payment of the aggregate Exercise Price shall be payable to the Company made in lawful money of the United States of America either cash or by certified or official bank or bank cashier’s check made check, payable to the order of the Company (or if agreed Company. In the alternative, each Holder may exercise its right 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 receive 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:
Shares (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 facea net basis, such that without the exchange of any funds, the Holder receives that number of Warrant Shares otherwise issuable upon exercise of its Warrants less that number of Warrant Shares having a fair market value equal to the aggregate Exercise Notices and any such other documents Price that would otherwise have been executed and completed in accordance with their terms;
paid by the Holder for the Warrant Shares being issued, (ii) inform by any Holder to whom the Company is indebted, by tendering indebtedness having an aggregate principal amount, plus accrued but unpaid interest, if any, thereon, to the date of exercise equal to the aggregate Exercise Price that would otherwise have been paid by the Holder for the Warrant Shares being issued, or (iii) by a combination of the procedures in clauses (i) and cooperate with and assist (ii). For purposes of the foregoing sentence, "fair market value" of the Warrant Shares shall be as determined by the Board of Directors of the Company in resolving good faith and evidenced by a resolution thereof. The Company shall notify the Holders in writing of any reconciliation problems between such determination of fair market value. Subject to the Warrant Exercise Notices received and delivery provisions of Section 7 hereof, upon surrender 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 Price 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)provided above, 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 promptly transfer facilities, by same-day or next-day credit to the Depository for the account Holder of such holder or for the account of Warrant 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 for the appropriate number of Warrant Shares or other securities or property (including any money) to which such holder the Holder is entitled, in fully registered formor otherwise placed in, registered in or payable to the order of, such name or names as may be directed in writing by the Holder, and shall deliver such holdercertificate or certificates representing the Warrant Shares and any other securities or property (including any money) to the Person or Persons entitled to receive the same, together with an amount in cash in lieu of any fraction of a share as provided in Section 13. Such Any such certificate or certificates representing the Warrant Shares shall be deemed to have been issued and any person Person so designated to be named therein shall be deemed to have become a holder Holder of record of such Warrant Shares as of the close later of business on the date of the delivery surrender of such Warrants and payment of the Exercise Price. The Warrants shall be exercisable commencing on the Issue Date, at the election of the Holders thereof. If , either in full or from time to time in part and, in the event that a certificate evidencing Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time prior to the Expiration Datedate of expiration of the Warrants, a new certificate evidencing the remaining Warrant Agent shall cause a notation to or Warrants will be made issued and delivered pursuant to the records maintained by the Depository, and, to the extent the Global provisions of this Section and of Section 3 hereof. All 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) Certificates surrendered upon exercise of a Warrant Warrants 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 Agentcancelled. Such cancelled Global Warrant Certificate Certificates 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 practicablecustomary procedures.
(k) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunder.
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, each Warrant holder shall have the right, which Warrants may be exercised in whole or in part, at any time and from time to time, beginning on after the date of original issuance of the Warrant pursuant hereof and prior to the terms close of this Warrant Agreement and ending at 5:00 p.m., New York City time, business 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.Each Warrant, 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 when 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 = terms hereof and upon payment in cash of the number exercise price of shares of $.01 (as adjusted pursuant to Section 12(m)) per share for the 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 AgentPrice") 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 acquire from the Company (or if agreed and the Company shall issue to in the sole such holder of a Warrant) one fully paid and absolute discretion non-assessable share of the Company, by wire transfer 's authorized but unissued Common Stock (subject to adjustment as provided in immediately available funds to an account arranged with the Company prior to exerciseSection 12).
(e) Any exercise of a Warrant pursuant to the terms of this Warrant Agreement . No cash dividend shall be irrevocable and shall constitute paid to a binding agreement between the holder and the Company, enforceable in accordance with its terms.
(f) The of 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 Shares issuable 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 unless such holder was, as of the record date for the declaration of such dividend, the record holder of such Warrant Exercise Notices with regard Shares. A Warrant may be exercised upon surrender to any particular exercise of Warrants. Neither the Company nor at the Warrant Agent shall Register Office of the certificate or certificates evidencing the Warrants to be under any duty exercised with the form of election to give notice purchase on the reverse thereof duly filled in and signed, together with payment to the holders Company of the Warrants of any irregularities in any exercise of Warrants, nor shall it incur any liability Exercise Price for the failure to give such notice.
(h) As soon as reasonably practicable after each Warrant Share issuable upon the exercise of any such Warrants. Subject to the provisions of this Section 7, upon surrender of the Warrant (and in any event not later than 10 business days thereafter)certificate or certificates, the Company shall issueissue and deliver with all reasonable dispatch, or otherwise deliver, in authorized denominations to or upon the written order of the Warrant 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 the Warrant holder may be directed by designate, a certificate or certificates for the number of Warrant Shares issuable or other securities or property to which such holderholder is entitled hereunder upon the exercise of such Warrants, including, at the Company's option, any cash payable in lieu of fractional interests as provided in Section 16. Such Warrant Shares certificate or certificates shall be deemed to have been issued and any person 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 surrender of such Warrants and payment of the Exercise Price. The Company may issue fractional shares of Common Stock upon exercise of any Warrants in accordance with Section 16. The Warrants shall be exercisable, at the election of the holders thereof. If fewer than , either in full or from time to time in part (provided that Warrants shall be exercisable in multiples of 5,000 Warrants unless all of the Warrants evidenced by a Global particular certificate are being exercised) and, in the event that a certificate evidencing Warrants is exercised in respect of fewer than all of the Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time on or prior to the Expiration Date, a new certificate evidencing the remaining Warrant Agent shall cause a notation to or Warrants will be made to issued, and the records maintained by Company will duly execute and deliver the Depository, and, to the extent the Global required new 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 pursuant to the provisions of Section 4 and this Section 7. All Warrant Shares are to be issued (or such Warrant Shares are to be registered, in the case of a book-entry transfer) certificates surrendered upon exercise of a Warrant Warrants 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 canceled by the Warrant AgentCompany. Such cancelled Global canceled Warrant Certificate certificates shall then be disposed of by or at the direction of in a manner satisfactory to the Company and in accordance with any applicable law. The Warrant Agent Company shall (x) advise an authorized representative of account promptly in writing with respect to Warrants exercised and all monies received for 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 purchase of the Warrant and (iii) Shares through the exercise of such other information as Warrants. In the event that the Company shall reasonably require and (y) concurrently pay to purchase or otherwise acquire Warrants, the Company all funds received by may elect to have 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 practicableWarrants canceled and retired.
(k) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunder.
Appears in 1 contract
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 Certificates pursuant to the terms of this Warrant Agreement and ending at prior to 5:00 p.m., p.m. New York City timeTime, on the date that is the seven year anniversary of the Effective Date February 28, 2011 (the “Expiration Date”), to exercise each Warrant and receive from the Company the number of fully paid and nonassessable Warrant Shares shares of Common Stock which the holder may at the time be entitled to receive on exercise of such Warrants upon and payment of the aggregate Exercise Price then in effect for such Warrant Sharesshares of Common Stock. The Company shall promptly provide the Warrant Agent with written notice of the Expiration Date. After 5:00 p.m.In addition, New York City time, on the Expiration Date, the Warrants will become wholly void and of no value. Prior 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 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 StockPrice. Each Warrant not exercised or converted 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 such time, on the Expiration Date.
(d) Unless . A Warrant may be exercised pursuant to a Cashless Exercise, the Exercise Price shall be payable upon surrender to the Company at the Warrant Agent Office referred to in lawful money Section 22 (the “Warrant Agent Office”) of the Warrant Certificate or Warrant Certificates evidencing the Warrants to be exercised, together with the form of election to purchase on the reverse thereof (the “Notice of Exercise”) duly and properly completed and signed, which signature shall be guaranteed by an “Eligible Guarantor Institution” as defined in Rule 17Ad-15(2) promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and upon payment to the Warrant Agent for the account of the Company of the exercise price of $10.00 (the “Exercise Price”), as adjusted from time to time as herein provided, for each share of Common Stock to be purchased. Payment of the aggregate Exercise Price for all shares of Common Stock being exercised in respect of a Warrant shall be made (a) in United States of America either Dollars or (b) by certified or official bank or bank cashier’s check for United States Dollars made payable to the order of the Company (or if agreed to in the sole and absolute discretion Company. In lieu of payment of the Companyaggregate Exercise Price as aforesaid and subject to applicable law, by wire transfer in immediately available funds to an account arranged with the Company prior to exercise).
(e) Any exercise holder of a Warrant pursuant may elect to receive from the Company a number of shares of Common Stock equal to the terms “Spread” by indicating such election in the Notice 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 holder. The “Spread” shall, subject to Section 15, be paid by the Company by delivering to such Warrant holder a number of and cooperate with and assist shares of Common Stock equal to (a)(i) 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, product of (x) the Current Market Price (as defined in Section 13(c) below) per share of Common Stock as of the date of receipt of such Warrant the Notice of Exercise Notice and by the number of Warrants exercised in accordance with the terms and conditions of this Warrant Agreement, Company multiplied by (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 entitledunderlying the Warrants being exercised, 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
minus (ii) if such holder holds the Warrants being exercised in product of (x) the form Exercise Price, multiplied by (y) the number of Book-Entry Warrants, a book-entry interest in the shares of Common Stock registered on underlying the books Warrants being exercised, divided by (b) the Current Market Price per share of Common Stock as of the transfer agent for date of receipt of the Notice of Exercise to the Company’s Common Stock (such agent, in such capacity, as may from time . Subject to time be appointed by the provisions of Section 9 below and Article Eleventh of the Certificate of Incorporation of the Company, upon such surrender of Warrants and payment of the “Transfer Agent”) oraggregate Exercise Price, at the Company’s option, by delivery Company shall issue and cause to be delivered promptly to or upon the address designated by such written order of the Warrant 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 and in such name or names names, as the Warrant holder may designate, a certificate or certificates for the number of full shares of Common Stock issuable upon the exercise of such Warrants together with cash as provided in Section 15; provided, however, that if any Fundamental Transaction (as defined in Section 13(g)) is proposed to be directed effected by the Company or there is pending any tender offer or an exchange offer for shares of Common Stock, upon such holdersurrender of Warrants and payment of the Exercise Price as aforesaid, the Company shall, as soon as possible, but in any event not later than two business days thereafter, issue and cause to be delivered the number of full shares of Common Stock issuable upon the exercise of such Warrants in the manner described in this sentence together with any cash as provided in Section 15. For purposes of this Warrant Agreement, a “business day” means any day other than a Saturday, Sunday or a day on which banking institutions in New York City are authorized or obligated by law, regulation or executive order to close or remain closed. Such Warrant Shares 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 Warrant Shares shares of Common Stock as of the close of business on the date of the delivery surrender of such Warrants and payment of the aggregate Exercise Price. In accordance with Section 15, no fractional shares shall be issued upon exercise of any Warrants. The Warrants shall be exercisable, at the election of the holders thereof. If , either in full or from time to time in part (in whole shares of Common Stock) and, in the event that a Warrant Certificate evidencing Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the shares of Common Stock issuable on such exercise of Warrants are exercised at any time prior to the Expiration Date, a new Warrant Certificate evidencing the remaining Warrant or Warrants will be promptly issued, and the Warrant Agent shall cause a notation is hereby irrevocably authorized and directed to be made countersign and to deliver the required new Warrant Certificate or Warrant Certificates pursuant to the records maintained provisions of this Section 7 and of Section 5, and the Company, whenever required 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 or under this Warrant Agreement, 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 supply the Warrant Shares are to be issued (or Agent with Warrant Certificates duly executed on behalf of the Company for such purpose. All Warrant Shares are to be registered, in the case of a book-entry transfer) Certificates surrendered 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 Certificates 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 exercised (i) the number of shares of Common Stock issued upon exercise of a Warrant, (ii) the notation to the records delivery of the Depository reflecting Warrant Certificates evidencing 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 promptly confirm such information to the Company in writing as promptly as practicable.
(k) writing. The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunderhereunder available for inspection by the holders of the Warrants during normal business hours at the Warrant Agent Office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Warrant Agreement as the Warrant Agent may request.
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. Each Adelphi Warrant entitles the registered owner thereof to purchase one share of Common Stock (aas adjusted), at a purchase price per share of $2.72 (the "Exercise Price") at any time from the first anniversary of the effective date of the Registration Statement relating to such initial public offering until 5:00 p.m. New York City time, on the date six years from the effective date of such Registration Statement, (the "Expiration Date"). The Exercisustment upon the occurrence of certain events, pursuant to the provisions of Section 6 of this Agreement. Subject to the terms provisions of this Warrant Agreement, each Warrant holder Holder shall have the right, which may be exercised as set forth 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”)such Adelphi Warrants, to exercise each Warrant and receive purchase from the Company (and the Company shall issue and sell to such Holder) 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 specified in such Adelphi Warrants, the Company shall comply with all applicable federal and state laws, rules and regulations which require action upon surrender 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 or its duly authorized agent, of such Adelphi Warrants, with the form of election (“Warrant Exercise Notice”) to exercise the Warrant purchase attached thereto duly completed and signed, and upon payment 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 DepositoryExercise Price, by or through persons that are direct participants as adjusted in accordance with the Depository;
(ii) delivering no later than 5:00 p.m.provisions of Section 6 of this Agreement, 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 for the number of shares of Common Stock Warrant Shares in respect of which any such Adelphi Warrants are being exercised or (y) in the case then exercised. Payment 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 such 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 may 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 made 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 or 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 company. No adjustment shall be made for any dividends on any shares of the Company, by wire transfer in immediately available funds to an account arranged with the Company prior to exercise).
(e) Any stock issuable upon exercise of a Warrant pursuant to the terms an Adelphi Warrant. Upon each surrender of this Warrant Agreement shall be irrevocable Adelphi Warrants 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 Price 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)aforesaid, the Company shall issue, or otherwise deliver, in authorized denominations issue and cause to be delivered with all reasonable dispatch to or upon the written 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 Holder of such holder or for Adelphi Warrants and (subject to receipt of evidence of compliance with the account provisions of a participant in the Depository the number Section 9 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
(iithis Agreement) 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 such Holder may be directed by designate, a certificate or certificates for the number of full Warrant Shares so purchased upon the exercise of such holderAdelphi Warrants, together with cash, as provided in Section 7 of this Agreement, in respect of any fractional Warrant Shares otherwise issuable upon surrender. Such Warrant Shares 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 the holder of record of such Warrant Shares as of the close of business on the date of the delivery surrender of such Adelphi Warrants and payment of the exercise Price as aforesaid. The rights of purchase represented by Adelphi Warrants shall be exercisable, at the election of the Holders thereof. If fewer , either in full or from time to time in part and, if and Adelphi Warrant is exercised in respect of less 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 (purchasable on such exercise, a new Adelphi Warrant 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 Adelphi Warrants shall be issued upon exercise of any Warrants.
(j) If all of for 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 remaining number of shares of Common Stock issued upon exercise of a Warrant, (ii) Warrant Shares specified in 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 Adelphi 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 practicableso surrendered.
(k) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunder.
Appears in 1 contract
Sources: Warrant Agreement (Educational Video Conferencing Inc)
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 during the period from (and from time to time, beginning on including) the date of original issuance of the Warrant pursuant to the terms of this Warrant Agreement and ending at until 5:00 p.m., New York City Eastern time, on June 26, 2012 (such period being herein referred to as the date that is the seven year anniversary of the Effective Date (the “Expiration Date”"Exercise Period"), 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 and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company Warrant Shares issued to a Warrant holder upon exercise of its Warrants shall promptly provide be fully paid, nonassessable and subject to no preemptive rights. Each Warrant not exercised prior to the Warrant Agent with written notice expiration of the Expiration DateExercise Period shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease as of such time. After 5:00 p.m.During the Exercise Period, New York City each Warrant holder may exercise, at any time or from time to time, on the Expiration Date, some or all of 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 represented by the Company. Subject to the terms and conditions set forth herein, the holder may exercise the Warrants by:
its Warrant Certificates by (i1) providing written notice of such election (“Warrant Exercise Notice”) to exercise the Warrant surrendering to the Company at its principal office such Warrant Certificates with the Form of Election to Purchase attached thereto duly filled in and the Warrant Agent at the addresses set forth in Section 23 no later than 5:00 p.m.signed, New York City time, on the Expiration Date, which Warrant Exercise Notice shall be substantially with signatures guaranteed by a bank or trust company having an office or correspondent in the form set forth either United States or a broker or dealer which is a member of a registered securities exchange or the National Association of Securities Dealers, Inc., and (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
(iii2) paying to the Company (x) the applicable Exercise Price multiplied by for the number of shares of Common Stock Warrant Shares in respect of which any such Warrants are then being exercised. Warrants shall be deemed exercised or (y) in on the case date Warrant Certificates representing such Warrants are surrendered to the Company, accompanied by the Form of a Cashless ExerciseElection to Purchase as provided above, paying and payment of the required consideration in Exercise Price for such Warrants is received by the manner set forth in Section 9(b)Company, in each case, together with any applicable taxes and charges. To the extent a Warrant Exercise Notice is delivered Shares in respect of a which the Warrants are exercised shall be deemed issued on that date, and the Person in whose name the certificate representing the Warrant no later than 5:00 p.m., New York City time, on Shares is to be issued shall be deemed the Expiration Date, but holder of such Warrant Shares as of that date for all purposes. Payment of 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 aggregate Exercise Price by the business day immediately prior Warrant holder shall be made by check payable to the Settlement Dateorder of the Company or by wire transfer of immediately available funds, as the Warrants holder shall nonetheless be deemed exercised prior elect. In addition to the Expiration Date for rights of the purposes of this Warrant Agreement.
(b) Provided holders under 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 preceding provisions of this Warrant AgreementSection, the each 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 thereafter eligible to be purchased by such holder pursuant to the exercise of the Warrants (the “Cashless Exercise”) held by it in accordance with the following formula: P N = ------------- ( M - E ) where: N = the number of shares of Common Stock to be subtracted from remaining number of Warrant Shares purchasable upon exercise of such holder's Warrants; and P = the aggregate number of Exercise Price otherwise payable for the 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 date of such exercise; and E = the Exercise Price exceeds on the Market Price at date of such exercise. Subject to the time provisions of Section 7, upon the exercise of any Warrants, the Company shall issue and cause to be delivered with all reasonable dispatch (but in any event within ten Business Days) to or upon the written order of the holder and in such name or names as the Warrant holder may designate, a certificate or certificates for the number of full Warrant Shares issuable upon the exercise of such Warrants, together with such other property, including cash, which shall be deliverable upon such exercise. Notwithstanding any other provision of this Agreement or the Warrants, then no but subject to the terms of the Intercreditor Agreement, the Company shall have the option in lieu of delivering shares of Common Stock will be issuable via the Cashless Exercise. The number upon exercise of shares of Common Stock Warrants, to be issued on such exercise will be determined by the Company (with written notice thereof deliver cash in an amount equal 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 otherwise deliverable times 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 Market Price per 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 on the Warrant Agent by or on behalf date 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 exercise. The Warrants 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 exercisable at any time 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 during the Company, the “Transfer Agent”) orExercise Period, 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 election of the close of business on the date of the delivery holders thereof. If , either in full or from time to time in part, and if fewer than all of the Warrants evidenced represented by a Global Warrant Certificate are exercised, a new certificate evidencing the Warrants not exercised will be issued by the Company at the Company's expense, to the holder of such Warrants with all reasonable dispatch (but in any event within ten Business Days). All Warrant Certificates 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 canceled 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 deliveredCompany.
(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.
Appears in 1 contract
Sources: Warrant Agreement (Medical Technology Systems Inc /De/)
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, each Warrant holder Holder shall have the right, which may be exercised in whole or in part, commencing 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.9:00 A.M., New York City time, on the date that is the seven year anniversary of the Effective Date this Warrant Agreement and until 5:00 P.M., New York City time, on July 10, 2002 (the “"Expiration Date”), Time") to exercise each Warrant and receive purchase from the Company the number of fully paid and nonassessable Warrant Shares which the holder Warrant Holder may at the time be entitled to receive (the "Exercise Quantity", as further defined in Section 11) on exercise of such WRT Warrants upon and payment of the aggregate Exercise Price (as defined in Section 11) then in effect for such Warrant Shares. The Company shall promptly provide the Each WRT 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 not 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 Time shall become null and void and all rights thereunder and all rights in respect thereof under this Warrant Agreement and the Warrant Certificates shall cease as of 5:00 p.m.such time. If the Expiration Time shall not be a business day, New York City time, then the Expiration Time shall be on the Expiration Datenext succeeding business day.
(db) Unless A WRT Warrant may be exercised upon surrender to the Company at the office of the Warrant Agent designated for such purpose of the Warrant Certificate or Warrant Certificates evidencing the WRT Warrants to be exercised with the form of election to purchase on the reverse thereof duly filled in and signed, which signature shall be guaranteed by an eligible guarantor institution (a bank, stockbroker, savings and loan association or credit union with membership in an approved signature guarantee medallion program) pursuant to a Cashless ExerciseRule 17Ad-15 of the Exchange Act, and upon payment to the Warrant Agent for the account of the Company of the Exercise Price for the number of Warrant Shares in respect of which such WRT Warrants are then exercised. Payment of the aggregate Exercise Price shall be payable to the Company made in lawful money of the United States of America either cash or by certified or official bank or bank cashier’s check made payable to the order of the Warrant Agent, as Warrant Agent for the Company.
(c) Subject to the provisions of Section 7 hereof, upon such surrender of WRT Warrants, delivery of required documents and payment of the Exercise Price, the Company (or if agreed to the surviving entity 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 case of a Warrant pursuant to Non- Surviving Combination as defined in subsection (l) of Section 12 hereof) shall issue and cause 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:
to deliver as described in subsection (id) examine all Warrant Exercise Notices and all other documents delivered to it by hereof a certificate 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 certificates for the number of full Warrant Shares (or 8 other cash or property to which the Warrant Holder is entitled) issuable (or deliverable) upon the exercise of such WRT Warrants exercised together with cash as provided in accordance with Section 13; provided, however, that after the terms and conditions first public announcement that any consolidation, merger or lease or sale of this Warrant Agreementassets is proposed to be effected by the Company as described in subsection (l) of Section 12 hereof, (y) the instructions with respect to or a tender offer or an exchange offer for shares of WRT Common Stock shall be made, upon such surrender of WRT Warrants, 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, required documents 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 Price 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. Moreoveraforesaid, 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 Warrantsshall, nor shall it incur any liability for the failure to give such notice.
(h) As as soon as reasonably practicable after the exercise of any Warrant (and possible, but in any event not later than 10 three (3) business days thereafter), issue and cause to be delivered 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 full number of Warrant Shares to which issuable upon the exercise of such holder is entitled, WRT Warrants in fully registered form, registered the manner described in such name or names this sentence together with cash as may be directed by such holderprovided in Section 13. Such Warrant Shares certificate or certificates (or such other cash or property) shall be deemed to have been issued (or delivered) and any person so designated to be named therein shall be deemed to have become a holder of record of such Warrant Shares (or such other cash or property) as of the close of business on the date of the surrender of such WRT Warrants, the delivery of required documents and payment of the Exercise Price.
(d) As promptly as practicable after an exercise of WRT Warrants in accordance with this Section 6, and in any event within three (3) business days after such exercise, the Warrant Agent will (1) requisition from any transfer agent for the WRT Common Stock (the "Transfer Agent") (or make available, if the Warrant Agent is the Transfer Agent) certificates representing the number of Warrant Shares to be purchased (and the Company hereby irrevocably authorizes and directs the Warrant Agent to so requisition and its Transfer Agent to comply with all such requests), (2) after receipt of such certificates, cause the same to be delivered to or upon the order of the Warrant Holder exercising such WRT Warrants, registered in such name or names as may be designated by such Warrant Holder, (3) when appropriate, requisition from the Company the amount of cash to be paid in lieu of the issuance of fractional Warrant Shares or fractional interests in any other securities, as the case may be, in accordance with the provisions of Section 13 and (4) when appropriate, after receipt, deliver such cash to or upon the order of the Warrant Holder exercising such WRT Warrants.
(e) Subject to the provisions of this Warrant Agreement and the Warrant Certificates, the WRT Warrants shall be exercisable, at the election of the Warrant Holders thereof. If , either in full or from time to time in part and, in the event that a certificate evidencing WRT Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time prior to the Expiration DateTime, a new certificate evidencing the remaining WRT Warrant or WRT Warrants will be issued, and the Warrant Agent shall cause a notation is hereby irrevocably authorized to be made countersign and to deliver the required new Warrant Certificate or Warrant Certificates pursuant to the records maintained provisions of this Section and of Sections 3 and 4 hereof, and the Company, whenever required by the DepositoryWarrant Agent, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellon, as custodian for the Depository, will supply the Warrant Agent will cause with Warrant Certificates duly executed on behalf of the Company for such custodian to make an appropriate notation on the Global purpose.
(f) All 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) Certificates surrendered upon exercise of a Warrant WRT Warrants 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 canceled by the Warrant Agent. Such cancelled Global canceled Warrant Certificate Certificates shall then be disposed of by or at the direction of Warrant Agent in a manner satisfactory to the Company in accordance with applicable lawCompany. The Warrant Agent shall (x) advise an authorized representative of account promptly to the Company as directed by the Company by the end of each day or on the next business day following each day on which with respect to WRT 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company all funds monies received by the Warrant Agent in payment for the purchase of the aggregate Exercise Price. Warrant Shares through the exercise of such WRT Warrants.
(g) The Warrant Agent shall confirm such information to and the Company in writing as promptly as practicable.
(k) The Warrant Transfer Agent shall keep copies of this Warrant Agreement and any notices given or received hereunderhereunder available for inspection by the Warrant Holders during normal business hours at each of their offices. The Company shall supply the Warrant Agent and the Transfer Agent from time to time with such numbers of copies of this Warrant Agreement as the Warrant Agent and/or the Transfer Agent may request and the Company will furnish to the Warrant Agent and the Transfer Agent a copy of all notices of adjustments and certificates related thereto transmitted to each Warrant Holder pursuant to Section 14 hereof.
(h) The Warrant Agent shall, from time to time, as promptly as practicable, advise the Company of (1) the number of WRT Warrants delivered to it in accordance with the terms and conditions of this Warrant Agreement and the Warrant Certificates, (2) the instructions of each Warrant Holder with respect to delivery of the Warrant Shares or other cash or property to which such Warrant Holder is entitled upon such delivery, (3) the delivery of Warrant Certificates evidencing the balance, if any, of the WRT Warrants remaining after such delivery and (4) such other information as the Company shall reasonably request.
(i) Warrant Holders, as such, shall not be entitled (1) to receive any dividends in respect of such Warrant Holders' Warrant Shares, (2) to vote or to receive notice of any meeting of the Company's stockholders for the election of Directors or for any other matter whatsoever or (3) to otherwise exercise any rights of, or to receive any notices delivered to, holders of WRT Common Stock until such Warrant Holder surrenders its Warrant Certificate(s) to the Warrant Agent, pays the Exercise Price and delivers all other required documentation, all as set forth in this Warrant Agreement and the Warrant Certificates, and the Warrant Shares in respect of such WRT Warrants are issued to such Warrant Holder.
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. (a) Subject to the --------------------------------------- terms of this Warrant Agreement, each Warrant holder Holder shall have the right, which may be exercised in whole or in part, commencing at any time and from time to time, beginning the opening of business on the date of original issuance of the Warrant pursuant Exercise Date 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 Holder may at the time be entitled to receive on exercise of such Warrants upon and payment of the aggregate Exercise Price then in effect for Price; provided that no Warrant Holder shall be entitled to exercise such Holder's Warrants at any time, unless, at the time of exercise (A), (i) a registration statement under the Securities Act relating to the Warrant Shares has been filed with, and declared effective by, the Commission, and no stop order suspending the effectiveness of such registration statement has been issued by the Commission or (ii) the issuance of the Warrant Shares is permitted pursuant to an exemption from the registration requirements of the Securities Act and (B) such Warrant Shares. The Company shall promptly provide Shares are qualified for sale or exempt from qualification under the applicable securities laws of the states in which the various holders of the Warrants or other Persons to whom it is proposed that the Warrant Agent with written notice Shares be issued on exercise of the Expiration DateWarrants reside. After 5:00 p.m., New York City time, on the Expiration Date, the Warrants No adjustments as to dividends 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 made upon proper exercise of the Warrants. Upon the occurrence of a Change of Control or an IPO, the Company shall comply with all applicable federal and state laws, rules and regulations which require action to Holders will 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”) required to exercise the Warrant to the Company and the Warrant Agent their Warrants 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 time in the manner set forth in Section 9(b), in each case, together with 6. In order to exercise all or any applicable taxes and charges. To of the extent Warrants represented by a Warrant Exercise Notice is delivered Certificate, (i) in respect the case of a Definitive Warrants, the holder thereof must surrender for exercise the Warrant no later than 5:00 p.m., Certificate to the Company at the office of the Warrant Agent at its New York City timecorporate trust office, on the Expiration Date, but the deliveries and payments specified in clause (ii) in the case of a book-entry interest in a Global Warrant, the exercising Participant whose name appears on a securities position listing of the Depositary as the holder of such book-entry interest must comply with the Depositary's procedures relating to the exercise of such book-entry interest in such Global Warrant and (iii) above are effected thereafter but no later than 5:00 p.m., New York City time, on in the business day immediately prior to the Settlement Date, the case of both Global 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 AgreementDefinitive Warrants, the holder thereof or the Participant, as applicable, must deliver to the Company at the office of the Warrant Agent the form of election to purchase on the reverse thereof duly filled in and signed, which signature shall have be a medallion guaranteed by an institution which is a member of a Securities Transfer Association recognized signature guarantee program, and upon payment to the right, in lieu Warrant Agent for the account of paying the Company of the Exercise Price Price, which is set forth in cashthe form of Warrant Certificate as adjusted as herein provided, to instruct the Company to reduce for the number of shares Warrant Shares in respect of Common Stock issuable which such Warrants are then exercised. In addition, if the holder is exercising warrants sold pursuant to Regulation S, (A) such holder must certify in writing that (i) it is not a "U.S. person" within the exercise meaning of Rule 902(k) of Regulation S under the Securities Act, (ii) the Warrants are not being purchased or exercised on behalf of or for the account or benefit of a "U.S. person", (the “Cashless Exercise”iii) such Holder will resell such Warrants only in accordance with the following formula: N = provisions of Rules 901 through 905 of Regulation S, pursuant to registration under the number Securities Act or pursuant to an available exemption from registration, and (iv) such Holder will not engage in hedging transactions with regard to the Warrants and the shares issuable on exercise of shares such Warrants unless in compliance with the Securities Act or (B) give a written opinion of Common Stock counsel to be subtracted from the aggregate number of shares of Common Stock issuable effect that the warrant and the securities delivered upon exercise thereof have been registered under the Securities Act or are exempt from registration thereunder. Payment of the Warrants; P = the aggregate Exercise Price which would otherwise shall be payable made (i) 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 check, payable to the order of the Company Company, (ii) by tendering Notes having an aggregate principal amount at the time of tender, plus accrued and unpaid interest, if any, thereon, to the date of exercise (or if agreed such exercise occurs prior to December 1, 2002, an Accreted Value (as defined in the sole Indenture) on the date of exercise) equal to the Exercise Price, (iii) by tendering Warrants having a fair market value equal to the Exercise Price or (iv) by tendering a combination of cash, Notes and absolute discretion Warrants. For purposes of clause (iii) above, the fair market value of the Warrants shall be determined as follows: (A) to the extent the Common Stock is publicly traded and listed on the Nasdaq National Market or a national securities exchange, the fair market value shall be equal to the greater of (1) the difference between (a) the average closing price as quoted on the Nasdaq National Market of the Common Stock for each of the 10 trading days immediately prior to the exercise date (or, if the Common Stock is listed on a national securities exchange, the average closing price as reported on such national securities exchange during such 10-trading-day period) and (b) the Exercise Price, and (2) zero; or (B) to the extent the Common Stock is not publicly traded, or otherwise is not listed on a national securities exchange, the fair market value shall be equal to the value per share as determined in good faith by the Board of Directors of the Company, by wire transfer in immediately available funds to an account arranged with the Company prior to exercise).
(e) Any . The exercise of a Warrant pursuant to the terms Warrants by Holders of this Warrant Agreement beneficial interest in Global Warrants shall be irrevocable and shall constitute a binding agreement between the holder and the Company, enforceable effected in accordance with its terms.
(f) The this Agreement and the procedures of the Depositary therefor. If Notes are surrendered in payment of the Exercise Price, the Warrant Agent shall:
(i) examine all Warrant Exercise Notices and all other documents delivered shall deliver such Notes 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 deliver such Notes to the Common Stock being made available to Trustee for cancellation and, upon written notification from 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 Trustee to the Company all funds received by that such Notes were in good form, the Company shall notify the Warrant Agent in writing that the Company has received full and proper payment of the aggregate Exercise Price.
. Upon surrender of any Notes in payment of the Exercise Price and cancellation of such Notes, the Trustee or the Depositary (gas defined in the Indenture) All questions at the direction of the Trustee, as applicable, shall issue a new Note with a principal amount at maturity adjusted to reflect the reduction for payment of the Exercise Price, in accordance with Article 2 of the Indenture. Subject to the validityprovisions of Section 9 hereof, form upon surrender of Warrants 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 payment of the CompanyExercise Price as provided above, 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 thereupon promptly notify the holders of the Warrants of any irregularities in any exercise of WarrantsCompany, 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 promptly transfer facilities, by same-day or next-day credit to the Depository for the account Holder of such holder or for the account of Warrant Certificate 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 for the appropriate number of Warrant Shares or other securities or property (including any money) to which such holder the Holder is entitled, in fully registered formor otherwise placed in, registered in or payable to the order of, such name or names as may be directed in writing by the Holder, and shall deliver such holdercertificate or certificates representing the Warrant Shares and any other securities or property (including any money) to the person or persons entitled to receive the same, together with an amount in cash in lieu of any fraction of a share as provided in Section 14. Such Any such certificate or certificates representing the 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 Holder of record of such Warrant Shares as of the close of business on the date of the delivery surrender of such Warrants and payment of the Exercise Price. The Warrants shall be exercisable commencing on the Exercise Date, at the election of the Holders thereof, either in full or from time to time in part. If fewer less than all the Warrants represented by a Definitive Warrant are exercised, such Definitive Warrant shall be surrendered and a new Definitive Warrant of the Warrants evidenced by a Global Warrant Certificate surrendered upon same tenor and for the exercise number of Warrants are which were not exercised at any time prior shall be executed by the Company and delivered to the Expiration Date, Warrant Agent and the Warrant Agent shall cause a notation to countersign the new Definitive Warrant, registered in such name or names as may be made directed in writing by the holder, and shall deliver the new Definitive Warrant to the records maintained by Person or Persons entitled to receive the Depository, and, same. The Warrant Agent shall make such notations on Schedule A to the extent the each 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 are required to reflect such reduction any change in the number of Warrants represented by the such Global Warrant Certificateresulting from any exercise in accordance with the terms hereof. The Person in whose name any certificate or certificates for the All Warrant Shares are to be issued (or such Warrant Shares are to be registered, in the case of a book-entry transfer) Certificates surrendered upon exercise of a Warrant Warrants 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 canceled 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 account promptly to the Company as directed by the Company by the end of each day or on the next business day following each day on which with respect to 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company all funds monies received by the Warrant Agent in payment for the purchase of the aggregate Exercise PriceWarrant Shares through the exercise of such Warrants. 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 hereunderhereunder by or from the Company available for inspection by the Holders during normal business hours at its office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may reasonably request. All certificates representing Warrant Shares issued in a transaction exempt from registration under the Securities Act shall bear the following legend (provided that if no legend is required none shall be placed on the Warrant Shares): THIS SECURITY MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES ABSENT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED AND ANY APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE EXEMPTION FROM REGISTRATION REQUIREMENTS.
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, and subject to compliance with all applicable legal requirements, each Warrant holder shall have the right, which may be exercised in whole or in part, at any time during the period from (and from time to time, beginning on including) the date of original issuance of the Warrant pursuant to the terms of this Warrant Agreement and ending at until 5:00 p.m., New York City Philadelphia, Pennsylvania, time, on the date that which is ten years after the seven year anniversary date of this Agreement (such period being herein referred to as the Effective Date (the “Expiration Date”"Exercise Period"), 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 and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company Warrant Shares issued to a Warrant holder upon exercise of its Warrants shall promptly provide be fully paid, nonassessable and subject to no preemptive rights. Each Warrant not exercised prior to the Warrant Agent with written notice expiration of the Expiration DateExercise Period shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease as of such time. After 5:00 p.m.During the Exercise Period, New York City timeeach Warrant holder may exercise, on the Expiration Dateat any time or from time to time and in its sole discretion, some or all of 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 represented by the Company. Subject to the terms and conditions set forth herein, the holder may exercise the Warrants by:
its Warrant Certificates by (i) providing written notice of such election (“Warrant Exercise Notice”) to exercise the Warrant surrendering to the Company at its principal office such Warrant Certificates with the Form of Election to Purchase attached thereto duly filled in and the Warrant Agent at the addresses set forth in Section 23 no later than 5:00 p.m.signed, 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 for the number of shares of Common Stock Warrant Shares in respect of which any such Warrants are then being exercised. Warrants shall be deemed exercised or on the date (ythe "Exercise Date") in Warrant Certificates representing such Warrants are surrendered to the case Company accompanied by the Form of a Cashless Exercise, paying Election to Purchase and payment of the required consideration in Exercise Price for such Warrants is received by the manner set forth in Section 9(b), in each case, together with any applicable taxes and chargesCompany. To the extent a Warrant Exercise Notice is delivered Shares in respect of a Warrant no later than 5:00 p.m., New York City time, which the Warrants are exercised shall be deemed issued on the Expiration Exercise Date, but and the deliveries and payments specified Person in clause (ii) and (iii) above are effected thereafter but no later than 5:00 p.m., New York City time, on whose name the business day immediately prior certificate representing the Warrant Shares is to be issued shall be deemed the holder of such Warrant Shares as of the Exercise Date for all purposes. Payment of the aggregate Exercise Price by the Warrant holder shall be made by certified or official bank check payable to the Settlement Date, order of the Warrants shall nonetheless be deemed exercised prior Company or by wire transfer of immediately available funds. In addition to the Expiration Date for rights of the purposes of this Warrant Agreement.
(b) Provided holders under 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 preceding provisions of this Warrant AgreementSection, the each 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 thereafter eligible to the be purchased by such holder upon exercise of the Warrants (the “Cashless Exercise”) held by it in accordance with the following formula: P N = --------- ( M - E ) where: N = the number of shares of Common Stock to be subtracted from the aggregate number of shares of Common Stock issuable Warrant Shares purchasable upon exercise of the such holder's Warrants; P = the aggregate Exercise Price which would otherwise be payable in cash for all the shares issuable upon exercise of the shares of Common Stock for which the Warrants are being exercisedWarrant; and M = the Market Price last reported sale price of a share of the Common Stock determined as before the date of the day immediately preceding the day the Warrant Exercise Notice is delivered to the Warrant Agent. If such exercise; and E = the Exercise Price exceeds on the Market Price at the time date 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 provisions of Section 13 and Section 14 hereof7, each Warrant, when exercised, will entitle upon 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 Companyany Warrants, 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 issue and cause 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 be delivered 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 but in any event not later than 10 business days thereafter), the Company shall issue, or otherwise deliver, in authorized denominations within ten Business Days) to or upon the written 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 the Warrant holder may designate, a certificate or certificates for the number of full Warrant Shares issuable pursuant to the exercise of such Warrants together with such other property, including cash, which may be directed by deliverable upon 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 thereofexercise. If fewer than all of the Warrants evidenced represented by a Global Warrant Certificate are exercised, a new certificate evidencing the Warrants not exercised will be issued by the Company at the Company's expense to the holder of such Warrants as soon as reasonably practicable (but in any event within ten Business Days). All Warrant Certificates 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 canceled 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 deliveredCompany.
(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.
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, each a Warrant holder shall have the right, which may be exercised in whole or in partexercisable, at any time and the election of the Holder thereof, either in full or from time to time in part during the period commencing 9:00 a.m., New York City time, beginning on the date of original issuance of the Warrant pursuant to the terms of this Warrant Agreement December 2, 2019 and ending at until 5:00 p.m., New York City time, on the date that is the seven year anniversary of the Effective Date December 2, 2029 (the “Expiration DateTime”), and shall entitle the Holder thereof to exercise each receive Warrant and receive Shares from the Company the number of fully paid and nonassessable Warrant Shares which the holder may at the time Company. No adjustments as to dividends will be entitled to receive on exercise of such Warrants made 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 (“Each 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 not 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 Time shall become void and all rights thereunder and all rights in respect thereof under this Warrant Agreement shall cease as of such time.
(b) In order to exercise all or any of the Warrants, the Holder thereof must deliver to the Company notice substantially in the form of the election to exercise set forth on the reverse of the Form Certificate duly filled in and signed (the “Exercise Notice”). Following its receipt of any Exercise Notice, the Company shall promptly (and in any event, within two Business Days) provide written notice to the Warrant Agent whether (A) the Company elects (a “Net Share Settlement Election”) to have the exercise of Warrants set forth in the Exercise Notice (the “Warrant Exercise”) net share settled pursuant to the procedures set forth in Section 4.01(c) (a “Net Share Settlement”) or (B) the Company elects (a “Full Share Settlement Election”) to have the Warrant Exercise settled solely in shares of Common Stock pursuant to the procedures set forth in Section 4.01(d) (a “Full Share Settlement”). If the Company shall not have provided such a notice to the Warrant Agent by 5:00 p.m., New York City time, on the Expiration Datesecond Business Day following the Company’s receipt of any such Exercise Notice, the Company will be deemed to have made a Full Share Settlement Election with respect to the Warrants to which such Exercise Notice relates, as of such time.
(dc) Unless exercised If the Company makes a Net Share Settlement Election pursuant to a Cashless Section 4.01(b) with respect to the Warrant 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 then the Warrant Exercise Notices received and delivery of Warrants to the shall be “net share settled” whereupon 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 will be converted into shares of Common Stock of pursuant to a cashless exercise, after which the Company deliverable upon such exercise, subject will issue to the timely receipt from Holder the Depository of the necessary information, and (z) such other information as the Company shall reasonably require;
(iv) subject Warrant Shares equal to the Common Stock being made available to the Warrant Agent result obtained 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 subtracting B 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 WarrantA, (ii) dividing the notation to the records of the Depository reflecting the balanceresult by A, if any, of the shares of Common Stock issuable after such exercise of the Warrant and (iii) such other information multiplying the difference by C as set forth in 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.following equation: where:
Appears in 1 contract
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 on or in part, at any time and from time to time, beginning on after the date of original issuance of the Warrant pursuant to the terms of this Warrant Agreement and ending at Separation Date until 5:00 p.m., New York, New York City timetime on March 15, on the date that is the seven year anniversary of the Effective Date 2007 (the “Expiration Date”"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 and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company shall promptly provide the ; PROVIDED, HOWEVER, that no 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 holder 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”) entitled to exercise the Warrant to the Company and the Warrant Agent such holder's Warrants at the addresses set forth in Section 23 no later than 5:00 p.m.any time unless, 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 (i) a registration statement under the Securities Act of Common Stock will be issuable via 1933, as amended (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 "SECURITIES ACT"), relating to the Warrant AgentShares has been filed with, and declared effective by, the Securities and Exchange Commission (the "SEC"), and no stop order suspending the effectiveness of such registration statement has been issued by the SEC or (ii) 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 issuance of the number of shares of Common Stock to be issued on such exercise, Warrant Shares is permitted pursuant to this Section 9(b), is accurate or correct, nor shall an exemption from 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 registration requirements 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 Securities Act. Each Warrant, when exercised, will entitle the holder thereof to purchase one share 6.84 fully paid and nonassessable shares of Common Stock at the Exercise Price then in effect for such share of Common StockPrice. Each Any Warrant not exercised pursuant to this Warrant Agreement prior to 5:00 p.m., New York City time, on 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.such time. No adjustments as to dividends will be made upon exercise of the Warrants. The Warrants may be exercised by surrendering to the Warrant Agent the Warrant Certificates evidencing the Warrants to be exercised with the accompanying form of election to purchase properly completed and executed, New York City time, on together with payment of the Expiration Date.
(d) Unless exercised pursuant to a Cashless Exercise, Exercise Price. Payment of the Exercise Price shall may be payable to made in the Company in lawful money form of the United States of America either cash or by certified or official bank or bank cashier’s check made payable to the order of the Company (or if agreed Company. Subject to in the sole provisions of Section 10 hereof, upon such surrender of Warrants and absolute discretion payment of the CompanyExercise Price, by wire transfer in immediately available funds to an account arranged with the Company prior shall issue and cause to exercise).
(e) Any exercise be delivered with all reasonable dispatch to or upon the written order 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 such name or on behalf of holders names 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 Companyholder may designate, no later than two business days after receipt of a Warrant Exercise Notice, of (x) the receipt of such Warrant Exercise Notice and certificate or certificates for the number of full Warrant Shares issuable upon the exercise of such Warrants exercised together with cash, if any, as provided in accordance with Section 16 hereof; PROVIDED, HOWEVER, that if any consolidation, merger or lease or sale of assets is proposed to be effected by the terms and conditions Company as described in subsection (m) of this Warrant AgreementSection 14 hereof, (y) the instructions with respect to delivery of the [or a tender offer or an exchange offer for shares of Common Stock of the Company deliverable shall be made], upon such exercise, subject to the timely receipt from the Depository surrender of the necessary information, Warrants 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.
Price as aforesaid, the Successor Guarantor (g) All questions as to the validityhereinafter defined), 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 finalapplicable, non-appealable judgment of a court of competent jurisdiction)shall, 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 possible, but in any event not later than 10 two business days thereafter), issue and cause to be delivered 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 full number of Warrant Shares to which issuable upon the exercise of such holder is entitledWarrants in the manner described in this sentence together with cash, if any, as provided in fully registered form, registered in such name or names as may be directed by such holderSection 16 hereof. Such Warrant Shares 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 Warrant Shares as of the close of business on the date of the delivery surrender of such Warrants and payment of the Exercise Price. No fractional shares shall be issued upon exercise of any Warrants in accordance with Section 16 hereof. The Company will pay to the holder of the Warrant at the time of exercise an amount in cash equal to the current market value of any such fractional share of Common Stock less a corresponding fraction of the Exercise Price. The Warrants shall be exercisable, at the election of the holders thereof. If , either in full or from time to time in part (in whole shares) and, in the event that a certificate evidencing Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time prior to the Expiration Date, a new certificate evidencing the remaining Warrant or Warrants will be issued, and the Warrant Agent shall cause a notation is hereby irrevocably authorized to be made countersign and to deliver the required new Warrant Certificate or Certificates pursuant to the records maintained provisions of this Section and of Section 4 of this Agreement, and the Company, whenever required by the DepositoryWarrant Agent, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellon, as custodian for the Depository, will supply the Warrant Agent will cause with Warrant Certificates duly executed on behalf of the Company for such custodian to make an appropriate notation on the Global purpose. All 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) Certificates surrendered 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 Certificates shall be held by the Warrant Agent until termination of its duties hereunder, at which time it shall deliver such cancelled Warrants to any successor Warrant Agent, if applicable, otherwise to the Company. Upon receipt by the Company, such cancelled Warrant Certificates 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 account promptly to the Company as directed by the Company by the end of each day or on the next business day following each day on which with respect to 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company all funds monies received by the Warrant Agent in payment for the purchase of the aggregate Exercise PriceWarrant Shares through the exercise of such Warrants. 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 hereunderhereunder available for inspection by the holders during normal business hours at its office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may request.
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, each Holder of a 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 during 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”)Exercisability Period, to exercise each Warrant and receive from the Company the number of fully paid and nonassessable Warrant Shares which the holder Holder may at the time be entitled to receive on exercise of such Warrants upon and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company shall promptly provide the Each Warrant Agent with written notice of the Expiration Date. After not exercised prior to 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 void, and all rights thereunder and all rights in respect thereof under this Warrant Agreement shall cease as of 5:00 p.m.such time. No adjustments as to dividends will be made upon exercise of the Warrants. Each Warrant may be exercised at any time during the Exercisability Period for such Warrant, New York City time, on the Expiration Date.
(d) Unless exercised pursuant to a Cashless Exercise, the Exercise Price shall be payable upon surrender to the Company in lawful money at the Warrant Agent Office of the United States certificate or certificates evidencing the Warrant to be exercised with the form of America either election to purchase on the reverse thereof duly filled in and signed, which signature shall be guaranteed by certified or official bank or bank cashier’s check made payable a member of the “Medallion System” or, in Argentina, notarized by a public notary, and upon payment in U.S. dollars to the order Warrant Agent for the account of the Company (or if agreed to in the sole and absolute discretion of the CompanyExercise Price, by wire transfer as adjusted as herein provided, for each of the Warrant Shares in immediately available funds respect of which such Warrant is then exercised. In the case of a Global Warrant, the DTC participant holding the interest through the Depositary shall present a duly completed and signed election to an account arranged with purchase to the Company prior to exercise).
(e) Any exercise of a at the Warrant pursuant Agent Office along with payment in U.S. dollars 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 for the account of the Company of the Exercise Price, as adjusted as herein provided, for each of the Warrant Exercise Notices and all other documents delivered Shares in respect of which such Warrant is then exercised; provided that, subject to it the requirements of the Depositary, such election to purchase may be completed by or on behalf of holders a DTC participant of such Depositary with an interest in the Global Warrant registered in the name of such Depositary or its nominee, as contemplated hereunder the case may be, and a DTC participant shall be entitled (subject 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;
(iithe provisions of the Global Warrant) 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 deliver or cause to be delivered to the Warrant Agent’s account;
(iii) advise , at its own expense, a duly completed election to purchase. If payment in U.S. dollars as provided in this Section 3 is legally prevented in Argentina, Holders of Warrants will be entitled to pay the Exercise Price directly to the Company, no later than two business days after receipt of a Warrant Exercise Notice, of (x) in Argentine Pesos in an amount equal to 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 Argentine Peso equivalent of the shares of Common Stock U.S. dollar Exercise Price of the Company deliverable upon such exercise, subject to Warrants determined on the timely receipt from the Depository basis of the necessary informationseller’s reference exchange rate (tipo de cambio vendedor published by Banco de la Nación Argentina, and (z) or if such other information as is not available, by Bloomberg, for the Company shall reasonably require;
(iv) subject to purchase of Argentina Pesos in exchange for U.S. dollars on the Common Stock being made available to business day preceding the Warrant Agent by or on behalf payment date 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 Exercise Price 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 bindingWarrants. The Warrant Agent shall incur have no liability for or in responsibility with 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 Companyexchange rate for the Exercise Price payable in Argentine Pesos or whether any such amounts have been paid. Subject to the provisions of Section 4, be unlawful. Such determination by the Company shall be final upon surrender of Warrants and binding on the holders, absent manifest error. Moreover, the Company reserves the absolute right to waive any payment 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 Price as provided above, the Warrant Agent shall be under any duty to give notice thereupon promptly notify the Company, and the Company shall transfer to the holders Holder of the Warrants such Warrant Certificate appropriate evidence 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 ownership of any Warrant Shares or other securities or property (and in including 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:
(imoney) 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 the 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 Warrantsotherwise placed in, 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 or payable 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 entitledorder of, in fully registered form, registered in such name or names as may be directed in writing by the Holder, and shall deliver such holderevidence of ownership and any other securities or property (including any money) to the Person or Persons entitled to receive the same, together with an amount in cash in lieu of any fraction of a share as provided in Section 9. Such Warrant Shares Any such evidence of ownership shall be deemed to have been issued and any person Person so designated to be named therein shall be deemed to have become a holder Holder of record of such Warrant Shares as of the close of business on the date of the delivery surrender of such Warrants and payment of the Exercise Price. The Warrants shall be exercisable during the Exercisability Period, at the election of the Holders thereof. If , either in full or from time to time in part and, in the event that a certificate evidencing Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time prior to the Expiration Datedate of expiration of the Warrants, a new certificate evidencing the remaining Warrant or Warrants will be issued, and the Warrant Agent is hereby irrevocably authorized to countersign and to deliver the required new Warrant Certificate or Certificates pursuant to the provisions of this Section and of Section 2.3, and the Company, whenever required by the Warrant Agent, will supply the Warrant Agent with Warrant Certificates duly executed on behalf of the Company for such purpose. All Warrant Certificates surrendered for the purpose of exercise (in whole or in part), exchange, substitution or transfer shall, if surrendered to the Company or to any of its agents, be delivered to the Warrant Agent for cancellation or in cancelled form, or if surrendered to the Warrant Agent shall cause a notation to be made cancelled by it, and no Warrant Certificates shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Agreement. If the Company purchases or acquires Warrants and if the Company so chooses, the Company may deliver to the records maintained by Warrant Agent for cancellation and retirement, and the Depository, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellon, as custodian for the DepositoryAgent shall so cancel and retire, 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 Certificates evidencing said 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 destroy such cancelled Warrant Certificates, and in such case shall upon the written request of the Company as directed by deliver a certificate of destruction thereof to the Company. The Warrant Agent shall account promptly to the Company by the end of each day or on the next business day following each day on which with respect to 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company all funds monies received by the Warrant Agent in payment for the purchase of the aggregate Exercise PriceWarrant Shares through the exercise of such Warrants. 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 hereunderhereunder by or from the Company available for inspection by the Holders during normal business hours at its office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may request.
Appears in 1 contract
Sources: Warrant Agreement (Cresud Inc)
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 at any time, and from time to time, in whole or in part, at any time and from time to time, beginning during the period commencing on the date of original issuance of the Global Warrant Certificates pursuant to the terms of this Warrant Agreement and ending at 5:00 p.m., p.m. New York City time, on the date that is the seven year tenth anniversary of the Plan Effective Date (the “Expiration Date”), to properly 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 and payment of the aggregate Exercise Price then in effect for such Warrant Shares.
(b) Subject to the adjustments set forth in Section 13, each Warrant, when exercised, will entitle the holder thereof to purchase such number of shares of Common Stock for each such Warrant as set forth in Section 1 hereof at the Exercise Price then in effect as set forth in Section 1 (as may be adjusted pursuant to Section 13 hereof). The Company shall promptly provide the Each Warrant Agent with written notice of not exercised pursuant to this Warrant Agreement prior to 5:00 p.m., New York City time, on the Expiration Date. After Date shall become void and all rights thereunder and all rights in respect thereof under this Warrant Agreement shall cease as of such time.
(c) The holder of Warrants may, until 5:00 p.m., New York City time, on the Expiration Date, the Warrants will become wholly void and of no value. Prior exercise, in whole or in part, at any time or from time to the delivery of any shares of Common Stock that the Company shall be obligated time, such holder’s right 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 purchase Warrant Shares by:
(i) providing written notice of such election (a “Warrant Exercise Notice”) to exercise the Warrant Warrants to the Company and to the Warrant Agent at the addresses set forth in Section 23 Warrant Agent Office, by overnight courier no later than 5:00 p.m., New York City time, on the Expiration Date, which Warrant Exercise Notice shall be in the form of an election to purchase Warrant Shares substantially in the form set forth either (x) in Exhibit A hereto for holders who hold Book-Entry WarrantsB-1 hereto, properly completed and executed by the holder, provided that such written notice may only be submitted by a holder with respect to Book-Entry Warrants; or (y) in Exhibit B hereto for holders who hold interest in B-2 hereto, properly completed and executed by the holder, provided that such written notice may only be submitted with respect to Warrants held 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 applicable Settlement DateDate (as defined below), 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 applicable aggregate Exercise Price for the Warrant Shares thereby purchased (the “Exercise Amount”), together with all applicable taxes and charges, by having the Company (x) withhold, from the applicable Exercise Price multiplied by the number of shares of Common Stock that would otherwise be delivered to such holder of Warrants upon such exercise, Warrant Shares issuable upon exercise of the Warrants so exercised equal in respect value to the aggregate Exercise Price as to such Warrant Shares, based on the market price of the Common Stock on the trading day on which any such Warrants are being exercised or and the Warrant Exercise Notice is delivered to the Warrant Agent pursuant to this Section 9. The date three business days after a Warrant Exercise Notice is delivered is referred to for all purposes under this Warrant Agreement as the “Settlement Date”.
(yd) 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 prior to 5:00 p.m., New York City time, on the Expiration Date, but the deliveries and payments specified in clause (iiSection 9(c)(ii) and (iiiSection 9(c)(iii) above are effected thereafter after the Expiration Date 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 be 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, Date for the Exercise Price shall be payable to the Company in lawful money purposes 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)this Warrant Agreement.
(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; provided that a holder may condition its exercise of a Warrant on the consummation of a Reorganization Event (as defined below).
(f) The Warrant Agent shall:
(i) examine all where a Warrant Exercise Notices and all Notice or other documents delivered document appears on its face 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 improperly completed or executed and completed or some other irregularity in accordance connection with their termsthe exercise of the Warrant exists, the Warrant Agent will assist the Company, as reasonably appropriate, to inform the appropriate parties (including the person submitting such instrument) of the need for fulfillment of all requirements, specifying those requirements which appear to be unfulfilled;
(ii) inform the Company of and cooperate with and assist the Company in resolving any reconciliation problems between relating to the Warrant Exercise Notices received and delivery of Warrants to the Warrant Agent’s account;
(iii) advise the Company, no later than two three (3) 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 exerciseWarrant Shares, subject to the timely receipt from the Depository of the necessary information, and (z) such other information as the Company shall reasonably require;; and
(iv) subject to the Common Stock Warrant Shares 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 reasonably determined by the Company in its sole discretiongood faith, 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 gross negligence, willful misconduct or bad faith (each as determined by a final, non-non appealable judgment order 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 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 unlawfulform. 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 The Company nor the Warrant Agent shall be under any no 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)Warrant, the Company shall issue, or otherwise deliver, in authorized denominations to or upon the order of the holder of the Warrants, such Warrant 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 Depository, the number of shares of Common Stock Warrant Shares 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 Warrant Shares registered on the books of the Company’s stock 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. Warrants shall be exercisable during the period provided for in Section 9(a) at the election of the holder thereof, either as an entirety or from time to time for a portion of the number of Warrant Shares issuable upon exercise of such Warrants. If fewer less than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the exercise of Warrants are exercised at any time prior to 5:00 p.m., New York City time, on the Expiration Date, a new Global Warrant Certificate(s) shall be issued for the Warrant Agent shall cause a notation to be made to the records maintained remaining number of Warrants evidenced by the Depository, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellonso surrendered, as custodian for the Depository, and the Warrant Agent will cause such custodian is hereby authorized to make an appropriate notation on countersign the new Global Warrant Certificate Certificate(s) pursuant to reflect such reduction in Warrants represented by the Global Warrant Certificateprovisions of Section 6 hereof and this Section 9. The Person 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 For purposes of this Warrant Agreement, a “business day” means any day other than a Saturday, Sunday or a day on which banking institutions in New York City are authorized or obligated by law, regulation or executive order to close or remain closed. In accordance with Section 16 15 hereof, no fractional shares of Common Stock shall be issued upon exercise of any Warrants.
(j) If all of the Warrants evidenced by a All Global Warrant Certificate have been exercised, such Global Warrant Certificate Certificates surrendered upon exercise of Warrants shall be cancelled by the Warrant Agent. Such cancelled Global Warrant Certificate Certificates 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 Warrant Shares issued upon exercise of a Warrant, (ii) the notation to the records delivery of the Depository reflecting Global Warrant Certificates evidencing 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 Pricerequire. The Warrant Agent shall confirm such information to the Company in writing as promptly as practicablewriting.
(k) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunder, and provide, at the Company’s expense, copies thereof to any registered holder of the Warrants requesting, in writing, such copy prior to 5:00 p.m., New York City time, on the Expiration Date. The Company shall supply the Warrant Agent from time to time with such number of copies of this Warrant Agreement as the Warrant Agent may reasonably request.
Appears in 1 contract
Sources: Warrant Agreement (New Media Investment Group Inc.)
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, each Warrant holder Holder shall have the right, which may be exercised in whole or in part, commencing at any time and from time to time, beginning the opening of business on the date of original issuance of the Warrant pursuant to the terms of this Warrant Agreement Exercisability Date and ending at until 5:00 p.m., New York City time, on the date that is the seven year anniversary of the Effective Expiration 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 Holder may at the time be entitled to receive on exercise of such Warrants upon and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The A Warrant may be exercised upon surrender to the Company shall promptly provide at the principal office of the Warrant Agent with written notice of the Expiration Date. After 5:00 p.m., New York City time, certificate or certificates evidencing the Warrant to be exercised with the form of election to purchase on the Expiration Datereverse thereof duly filled in and signed, which signature shall be guaranteed by a bank or trust company having an office or correspondent in the Warrants will become wholly void United States or a broker or dealer which is a member of a registered securities exchange or the National Association of Securities Dealers, Inc., and of no value. Prior upon payment to the delivery Warrant Agent for the account of any shares the Company of Common Stock the Exercise Price as adjusted as herein provided, for each of the Warrant Shares in respect of which such Warrant is then exercised; provided, that in connection with such exercise, the Company shall be obligated to deliver upon proper exercise furnished with information regarding the citizenship 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 Holder 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) which in the case of a Cashless ExerciseDefinitive Warrant, paying shall be furnished by completing the required consideration Application for Purchase of Common Stock set forth on the reverse of the Warrant, and in the case of Global Warrants, shall be furnished in such manner established by the Depositary that is acceptable to the Company and complies with the requirements set forth in Section 9(bthe Company's Certificate of Incorporation, as amended from time to time); provided, further, no Warrant may be exercised if the Company determines that such exercise shall cause the ownership of its common stock by persons or entities that are not citizens of the United States to exceed the maximum percentage permitted under applicable law as more fully described in each casethe Certificate of Incorporation of the Company, together with any as amended from time to time; provided, further, that in the event that the exercise is not accepted by the Company for such reason, the Holder of the Warrant shall be entitled to the remedies that would have otherwise been available to such Holder under the Company's Certificate of Incorporation, as amended from time to time, had the Holder been a transferee of the Company's common stock that caused the percentage ownership by non-citizens to exceed the maximum permitted percentage under applicable taxes and chargeslaw. To Notwithstanding anything to the extent a Warrant Exercise Notice is delivered in respect contrary contained herein, the Holder 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 that is not entitled to the Settlement Date, the Warrants shall nonetheless be deemed exercised prior to the Expiration Date for the purposes of this exercise such Warrant Agreement.
(b) Provided the Common Stock is then listed or admitted for trading on as 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 result 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 restrictions on ownership by non- citizens shall not have any rights as a stockholder 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)Company. The Warrant Agent shall have no duty to evaluate or obligation determine the citizenship of any Holder of any Warrant at any time and shall have no responsibility with respect to investigate or confirm whether the ownership of the Company’s determination 's common stock by any party or the consequences thereof. Payment 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 aggregate Exercise Price shall be payable to the Company made in lawful money of the United States of America either cash or by certified or official bank or bank cashier’s check made check, 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 . The exercise of a Warrant pursuant to the terms Warrants by Holders of this Warrant Agreement beneficial interest in Global Warrants shall be irrevocable and shall constitute a binding agreement between the holder and the Company, enforceable effected in accordance with its terms.
(f) The Warrant Agent shall:
(i) examine all Warrant Exercise Notices this Agreement and all other documents delivered the procedures of the Depositary therefor. Subject to it by or on behalf the provisions of holders as contemplated hereunder to ascertain whetherSection 8 hereof, 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 upon surrender 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 Price as to the validityprovided above, 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 thereupon promptly notify the holders of the Warrants of any irregularities in any exercise of WarrantsCompany, 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 promptly transfer facilities, by same-day or next-day credit to the Depository for the account Holder of such holder or for the account of Warrant Certificate 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 for the appropriate number of Warrant Shares to which such holder the Holder is entitled, in fully registered formor otherwise placed in, registered in or payable to the order of, such name or names as may be directed in writing by the Holder, and shall deliver such holdercertificate or certificates representing the Warrant Shares and any cash in lieu of any fraction of a share as provided in Section 14 to the person or persons entitled to receive the same. Such Any such certificate or certificates representing the 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 Holder of record of such Warrant Shares as of the close of business on the date of the delivery surrender of such Warrants and payment of the Exercise Price. The Warrants shall be exercisable commencing on the Exercisability Date, at the election of the Holders thereof. If , either in full or from time to time in part and, in the event that a certificate evidencing Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time prior to the Expiration Datedate of expiration of the Warrants, a new certificate evidencing the remaining Warrant or Warrants will be issued, and the Warrant Agent shall cause a notation is hereby irrevocably authorized to be made countersign and to deliver the required new Warrant Certificate or Certificates pursuant to the records maintained provisions of this Section and of Section 4 hereof, and the Company, whenever required by the DepositoryWarrant Agent, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellon, as custodian for the Depository, will supply the Warrant Agent will cause with Warrant Certificates duly executed on behalf of the Company for such custodian to make an appropriate notation on the Global purpose. All 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) Certificates surrendered upon exercise of a Warrant Warrants 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 canceled by the Warrant Agent. Such cancelled Global canceled Warrant Certificate Certificates shall then be disposed of by or at the direction of Warrant Agent in a manner satisfactory to the Company in accordance with applicable lawCompany. The Warrant Agent shall (x) advise an authorized representative of account promptly to the Company as directed by the Company by the end of each day or on the next business day following each day on which with respect to 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently promptly pay to the Company all funds monies received by the Warrant Agent in payment for the purchase of Warrant Shares through the aggregate Exercise Priceexercise of such Warrants. 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 hereunderhereunder by or from the Company available for inspection by the Holders during normal business hours at its office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may request.
Appears in 1 contract
Sources: Warrant Agreement (Hvide Marine Inc)
Terms of Warrants; Exercise of Warrants. The Warrants may --------------------------------------- be exercised as follows: (aA) in the case of the Initial Warrants, on or after the earliest to occur of (i) one year from the date of issuance of thereof, (ii) in the event of a Change in Control (as defined in the Indenture), the date the Company mails notice thereof, and (iii) 180 days after the consummation of an Initial Public Offering (as defined in the Indenture) of the Company's Common Stock and (B) in the case of the Contingent Warrants, at any time after the issuance thereof (such date, the "Exercise Commencement Date"). Unless exercised, all Warrants shall automatically expire at 5:00 p.m., New York, New York time on January 1, 2005 (such date, the "Expiration Date" and, the period commencing on the Exercise Commencement Date and ending on the Expiration Date, the "Exercise Period"). The Company shall notify the holders of the Warrants (the "Expiration Date Notice") of the Expiration Date not less than 90 days nor more than 120 days prior thereto. If the Company fails to give the Expiration Date Notice within the time period prescribed in the preceding sentence, the Expiration Date shall be extended until the date that is 90 days after the date such Expiration Date Notice is actually given. 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 during 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”)Exercise Period, 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 upon exercise of such Warrants upon and payment of the aggregate Exercise Price (as defined in the Definitive Warrants) then in effect for such Warrant Shares. The Company shall promptly provide the ; provided that no 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 holder 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”) entitled to exercise the Warrant to the Company and the Warrant Agent such holder's Warrants at the addresses set forth in Section 23 no later than 5:00 p.m.any time unless, 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 (i) a registration statement under 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 Securities Act, relating to the Warrant AgentShares has been filed with, and declared effective by, the Securities and Exchange Commission (the "SEC"), and no stop order suspending the effectiveness of such registration statement has been issued by the SEC or (ii) 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 issuance of the number Warrant Shares is permitted pursuant to an exemption from the registration requirements of shares the Securities Act and, in the case of Common Stock clauses (i) and (ii) above, such securities are qualified for sale or exempt from qualification under the applicable securities laws of the states in which the various holders of the Warrants or other persons to whom it is proposed that the Warrant Shares 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 upon 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 Warrants reside. Each Warrant, when exercised, will exercised shall entitle the holder thereof to purchase one share 64 fully paid and nonassessable shares of Common Stock at the Exercise Price then in effect for such share of Common StockPrice. 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 such time, . No adjustments as to dividends will be made upon exercise of the Warrants. The Warrants may be exercised by surrendering to the Company at the principal office of the Warrant Agent the Warrant Certificates evidencing the Warrants to be exercised with the accompanying form of election to purchase on the Expiration Date.
(d) Unless exercised pursuant reverse thereof properly completed and signed, which signature shall be medallion guaranteed by an institution which is a member of a Securities Transfer Association recognized signature guarantee program, and upon payment to a Cashless Exercisethe Warrant Agent for the account of the Company of the Exercise Price, as adjusted as herein provided, for the number of Warrant Shares in respect of which such Warrants are then exercised. Payment of the Exercise Price shall may be payable to made (i) in the Company in lawful money form of the United States of America either cash or by certified or official bank or bank cashier’s check made payable to the order of the Company Company, (ii) by tendering Notes having an aggregate principal amount at the time of tender, plus accrued and unpaid interest, if any, thereon, to the date of exercise (or if agreed such exercise occurs prior to the Full Accretion Date (as defined in the sole Indenture), an Accreted Value (as defined in the Indenture) on the date of exercise) equal to the Exercise Price, (iii) by tendering Warrants having a fair market value equal to the Exercise Price or (iv) by tendering a combination of cash, Notes and absolute discretion Warrants. For purposes of clause (iii) above, the fair market value of the Warrants shall be determined as follows: (A) to the extent the Common Stock is publicly traded and listed on the Nasdaq National Market or a national securities exchange, the fair market value shall be equal to the greater of (1) the difference between (a) the average closing price as quoted on the Nasdaq National Market of the Common Stock for each of the 10 trading days immediately prior to the exercise date (or, if the Common Stock is listed on a national securities exchange, the average closing price as reported on such national securities exchange during such 10-trading-day period) and (b) the Exercise Price, and (2) zero; or (B) to the extent the Common Stock is not publicly traded, or otherwise is not listed on a national securities exchange, the fair market value shall be equal to the value per share as determined in good faith by the Board of Directors of the Company. If Notes are surrendered in payment of the Exercise Price, by wire transfer in immediately available funds the Warrant Agent shall deliver such Notes to an account arranged with the Company prior to exercise).
(e) Any exercise of a Warrant pursuant and the Company shall deliver such Notes to the terms Trustee for cancellation and, upon written notification from the Trustee to the Company that such Notes were in good form, the Company shall notify the Warrant Agent in writing that the Company has received full and proper payment of this Warrant Agreement the Exercise Price. Upon surrender of any Notes in payment of the Exercise Price and cancellation of such Notes, the Trustee or the Depositary (as defined in the Indenture) at the direction of the Trustee, as applicable, shall be irrevocable and shall constitute issue a binding agreement between new Note with a principal amount at maturity adjusted to reflect the holder and reduction for payment of the CompanyExercise Price, enforceable in accordance with its terms.
(f) The Article 2 of the Indenture. Subject to the provisions of Section 9 hereof, upon such surrender of Warrants and payment of the Exercise Price, the Company shall deliver and cause to be delivered with all reasonable dispatch to or upon the written order of the Warrant Agent shall:
(i) examine all Warrant Exercise Notices holder and all other documents delivered to it by in such name or on behalf of holders names 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 Companyholder may designate, no later than two business days after receipt of a Warrant Exercise Notice, of (x) the receipt of such Warrant Exercise Notice and certificate or certificates representing the number of whole Warrant Shares issuable upon the exercise of such Warrants exercised together with cash as provided in accordance with Section 15 hereof; provided that if any consolidation, merger or lease or sale of assets is proposed to be effected by the terms and conditions Company as described in subsection (m) of this Warrant AgreementSection 13 hereof, (y) the instructions with respect to delivery of the or a tender offer or an exchange offer for shares of Common Stock of the Company deliverable is made, upon such exercise, subject to the timely receipt from the Depository surrender of the necessary information, Warrants 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 Price 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. Moreoveraforesaid, 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 Warrantsshall, nor shall it incur any liability for the failure to give such notice.
(h) As as soon as reasonably practicable after the exercise of any Warrant (and possible, but in any event not later than 10 two business days thereafter), deliver or cause to be delivered 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 whole number of Warrant Shares to which issuable upon the exercise of such holder is entitled, Warrants in fully registered form, registered the manner described in such name or names this sentence together with cash as may be directed by such holderprovided in Section 15 hereof. Such Warrant Shares 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 Warrant Shares as of the close of business on the date of the delivery surrender of such Warrants and payment of the Exercise Price therefor. The Warrants shall be exercisable, at the election of the holders thereof. If , either in full or from time to time in part (in whole shares) and, in the event that a Warrant Certificate is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time prior to the Expiration Datedate of expiration of the Warrants, a new certificate evidencing the remaining Warrant or Warrants shall be issued, and the Warrant Agent shall cause a notation is hereby irrevocably authorized to be made countersign and to deliver the required new Warrant Certificate or Certificates pursuant to the records maintained provisions of this Section 8 and of Section 4 hereof, and the Company, whenever required by the DepositoryWarrant Agent, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellon, as custodian for the Depository, shall supply the Warrant Agent will cause with Warrant Certificates duly executed on behalf of the Company for such custodian to make an appropriate notation on the Global purpose. All 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) Certificates surrendered 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 Certificates 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 account promptly to the Company as directed by the Company by the end of each day or on the next business day following each day on which with respect to 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay surrender to the Company all funds Notes and Warrants received by the Warrant Agent in payment for the purchase of the aggregate Exercise PriceWarrant Shares through the exercise of such Warrants. 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 hereunderhereunder available for inspection by the holders during normal business hours at its office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may request.
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant AgreementAgreement (including without limitation, Section 12(d)), each Warrant holder shall have the right, which may be exercised at any time, and from time to time, in whole or in part, during the period (x) commencing on the business day (as defined below) immediately following a period of 30 consecutive Trading Days ending prior to, but not including, such business day during which the Closing Price of the Common Stock for at any time and least 20 of the Trading Days within such 30-day period is equal to or greater than $39.63 (as adjusted from time to time, beginning on the date of original issuance of the Warrant pursuant to time in accordance with the terms of this Warrant Agreement hereof, the “Trigger Price”) and (y) ending at 5:00 p.m., p.m. New York City timeTime, on the date that is the seven year anniversary of the Effective Date [November ,] 2014 (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 Warrant and 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.In addition, New York City time, on the Expiration Date, the Warrants will become wholly void and of no value. Prior prior to the delivery of any shares of Common Stock Warrant Shares 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 (the “Warrant Exercise Notice”) to exercise the Warrant Warrants to the Company and the Warrant Agent at the addresses set forth in Section 23 no later than 5:00 p.m., p.m. New York City time, on the Expiration Date, which Warrant Exercise Notice shall be substantially in the form of an election to purchase Warrant Shares substantially set forth either (x) in Exhibit A hereto for holders who hold Book-Entry WarrantsB-1 hereto, properly completed and executed by the holder, ; provided that such written notice may only be submitted by a holder who holds Book-Entry Warrants or (y) in Exhibit B hereto for holders who hold interest in B-2 hereto, properly completed and executed by the holder; provided that such written notice may only be submitted with respect to Warrants held through the book-entry facilities of the Depository, by or through persons that are direct participants in the Depository;; and
(ii) delivering no later than 5:00 p.m., p.m. New York City time, on the business day immediately prior to the applicable Settlement DateDate (as defined below), 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 aggregate Exercise Price multiplied by the number of shares of Common Stock in respect of which any for all 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“Exercise Amount”), in each case, together with any all applicable taxes and charges. To the extent The date three business days after a Warrant Exercise Notice is delivered in respect of a is referred to for all purposes under this Warrant no later than 5:00 p.m., New York City time, on Agreement as 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 For purposes of this Warrant AgreementSection 8, the holder following terms 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 meanings 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 shallbelow:
(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.
Appears in 1 contract
Sources: Warrant Agreement
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 Certificates pursuant to the terms of this Warrant Agreement and ending at prior to 5:00 p.m., p.m. New York City timeTime, on the date that is the seven year anniversary of the Effective Date January 10, 2011 (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 and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The ; provided, however, that if the Company shall promptly provide or a holder of Warrants reasonably believes (as evidenced by notice to the Warrant Agent of such belief) that the exercise of any Warrant requires prior compliance with written the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, an▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇egulations thereunder, any such exercise shall be contingent upon such prior compliance as evidenced by notice from the Company to the Warrant Agent of the Expiration Datesuch compliance. After 5:00 p.m.In addition, New York City time, on the Expiration Date, the Warrants will become wholly void and of no value. Prior prior to the delivery of any shares of Common Stock Warrant Shares 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 Each Warrant, when exercised, will will, as adjusted as provided herein, entitle the holder thereof to purchase one fully paid and nonassessable share of Common Stock at the Exercise Price then in effect for such share of Common StockPrice. 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 such time, on the Expiration Date.
(d) Unless . A Warrant may be exercised pursuant to a Cashless Exercise, the Exercise Price shall be payable upon surrender to the Company in lawful money at the principal corporate trust office of the Warrant Agent referred to in Section 20 (the "Warrant Agent Office") of the Warrant Certificate or Warrant Certificates evidencing the Warrants to be exercised with the form of election to purchase on the reverse thereof duly completed and signed, which signature shall be guaranteed by an "Eligible Guarantor Institution" as defined in Rule 17Ad-15(2) promulgated under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), and upon payment to the Warrant Agent for the account of the Company of the exercise price of $309.88 (the "Exercise Price"), as adjusted from time to time as herein provided, for each Warrant Share then exercised. Payment of the aggregate Exercise Price for all Warrant Shares being exercised in respect of a Warrant shall be made (a) in United States of America either Dollars or (b) by certified or official bank or bank cashier’s check for United States Dollars made payable to the order of the Company (or if agreed to in the sole and absolute discretion "NTL Incorporated". In lieu of payment of the Companyaggregate Exercise Price as aforesaid and subject to applicable law, by wire transfer in immediately available funds to an account arranged with the Company prior to exercise).
(e) Any exercise holder of a Warrant pursuant to may request 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 payment 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 "Spread", which shall, subject to Section 14, be delivered by the Company in resolving any reconciliation problems between by delivering to such Warrant holder a number of shares of Common Stock equal to (a)(i) 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, product of (x) the current market price per share of Common Stock (as of the date of receipt of such Warrant Exercise Notice and the number of Warrants exercised in accordance with request to the terms and conditions of this Warrant AgreementCompany), multiplied by (y) the instructions with respect to delivery number of Warrant Shares underlying the shares Warrants being exercised, minus (ii) the product of (x) the Exercise Price, multiplied by (y) the number of Warrant Shares underlying the Warrants being exercised, divided by (b) the current market price per share of Common Stock (as of the Company deliverable date of receipt of the request to the Company). Subject to the provisions of Section 8, upon such exercise, subject to the timely receipt from the Depository surrender of the necessary information, Warrants 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.
, the Company shall issue and cause to be delivered promptly to or upon the written order of the holder and in such name or names, as the Warrant holder may designate, a certificate or certificates for the number of full Warrant Shares issuable upon the exercise of such Warrants together with cash as provided in Section 14; provided, however, that if any Fundamental Transaction (gas defined in Section 12(h)(1)) All questions as is proposed to the validity, form and sufficiency (including time of receipt) of a Warrant exercise shall be determined effected by the Company in its sole discretion, which determination or a tender offer or an exchange offer for shares of Common Stock shall be final made, upon such surrender of Warrants 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 payment of the Company, be unlawful. Such determination by the Company shall be final and binding on the holders, absent manifest error. MoreoverExercise Price as aforesaid, 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 Warrantsshall, nor shall it incur any liability for the failure to give such notice.
(h) As as soon as reasonably practicable after the exercise of any Warrant (and possible, but in any event not later than 10 two business days thereafter), issue and cause to be delivered 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 full number of Warrant Shares to which issuable upon the exercise of such holder is entitled, Warrants in fully registered form, registered the manner described in such name or names this sentence together with cash as may be directed by such holderprovided in Section 14. Such Warrant Shares 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 Warrant Shares as of the close of business on the date of the delivery surrender of such Warrants and payment of the aggregate Exercise Price. No fractional shares shall be issued upon exercise of any Warrants in accordance with Section 14. The Warrants shall be exercisable, at the election of the holders thereof. If , either in full or from time to time in part (in whole Warrant Shares) and, in the event that a Certificate evidencing Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time prior to the Expiration Date, a new Certificate evidencing the remaining Warrant or Warrants will be promptly issued, and the Warrant Agent shall cause a notation is hereby irrevocably authorized to be made countersign and to deliver the required new Warrant Certificate or Certificates pursuant to the records maintained provisions of this Section 7 and of Section 5, and the Company, whenever required by the DepositoryWarrant Agent, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellon, as custodian for the Depository, will supply the Warrant Agent will cause with Warrant Certificates duly executed on behalf of the Company for such custodian to make an appropriate notation on the Global purpose. All 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) Certificates surrendered 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 Certificates 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 at the end of each day or on the next business day following each day on which Warrants were exercised, of exercised (i) the number of shares of Common Stock Warrant Shares issued upon exercise of a Warrant, (ii) the notation to the records delivery of the Depository reflecting Warrant Certificates evidencing the balance, if any, of the shares of Common Stock Warrant Shares 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 it in payment of the aggregate Exercise Price. The Warrant Agent shall promptly confirm such information to the Company in writing as promptly as practicable.
(k) writing. The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunderhereunder available for inspection by the holders of the Warrants during normal business hours at its office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Warrant Agreement as the Warrant Agent may request.
Appears in 1 contract
Sources: Warrant Agreement (NTL Inc)
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 until 5:00 p.m., New York, New York City timetime on December 15, on the date that is the seven year anniversary of the Effective Date 2008 (the “Expiration Date”"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 and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company shall promptly provide the ; PROVIDED, HOWEVER, that no 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 holder 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”) entitled to exercise the Warrant to the Company and the Warrant Agent such holder's Warrants at the addresses set forth in Section 23 no later than 5:00 p.m.any time unless, 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 (i) a registration statement under the Securities Act of Common Stock will be issuable via 1933, as amended (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 "SECURITIES ACT"), relating to the Warrant AgentShares has been filed with, and declared effective by, the Securities and Exchange Commission (the "SEC"), and no stop order suspending the effectiveness of such registration statement has been issued by the SEC or (ii) 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 issuance of the number of shares of Common Stock to be issued on such exercise, Warrant Shares is permitted pursuant to this Section 9(b), is accurate or correct, nor shall an exemption from 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 registration requirements 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 Securities Act. Each Warrant, when exercised, will entitle the holder thereof to purchase one fully paid and nonassessable share of Common Stock at the Exercise Price then in effect for such share Price. In the absence of Common Stock. Each Warrant not an exercise the Warrants will be automatically deemed to have been exercised pursuant to this Warrant Agreement prior to immediately before 5:00 p.m. on the Expiration Date shall become void and all rights thereunder and all rights in respect thereof under this Warrant Agreement shall cease as with payment 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 pursuant to clause (A) in the next succeeding paragraph. No adjustments as to dividends will be payable made upon exercise of the Warrants. The Warrants may be exercised by surrendering to the Company in lawful money Warrant Agent the Warrant Certificates evidencing the Warrants to be exercised with the accompanying form of election to purchase properly completed and executed, together with payment of the United States Exercise Price. Payment of America either the Exercise Price may be made (A) by tendering Warrants having a fair market value equal to the Exercise Price, (B) in the form of cash or by certified or official bank or bank cashier’s check made payable to the order of the Company or (or if agreed to in C) by any combination of Warrants and cash. For purposes of clause (A) above, the sole and absolute discretion fair market value of the CompanyWarrants shall be determined as follows: (A) if the Common Stock is publicly traded and listed on the Nasdaq National Market or a national securities exchange, the fair market value shall be equal to the number of shares represented by wire transfer such Warrant multiplied by the greater of (1) the difference between (a) the average closing price as quoted on the Nasdaq National Market of the Common Stock for each of the ten trading days immediately prior to the exercise date (or, if the Common Stock is listed on a national securities exchange, the average closing price as reported on such national securities exchange during such ten trading day period) and (b) the Exercise Price, and (2) zero; or (B) if the Common Stock is not publicly traded, or otherwise is not listed on a national securities exchange, the fair market value of the Warrants shall be equal to the value per share as determined in immediately available funds to an account arranged with good faith by the Board of Directors of the Company prior to exercise(the "BOARD OF DIRECTORS").
(e) Any exercise of . In the event that Warrants are surrendered by a Warrant pursuant holder in payment of the Exercise Price, the Warrant Agent shall notify the Company of such, which notice shall also include the amount of the Exercise Price and the amount of cash, if any, received by the Warrant Agent as partial payment of the Exercise Price. Within a reasonable time of receiving such notice, the Company shall advise the Warrant Agent whether the Warrant Agent has received payment in full of the Exercise Price. Subject to the terms provisions of this Warrant Agreement Section 10 hereof, upon such surrender of Warrants and payment of the Exercise Price, the Company shall issue and cause to be irrevocable and shall constitute a binding agreement between delivered with all reasonable dispatch to or upon the written order of 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 such name or on behalf of holders names 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 Companyholder may designate, no later than two business days after receipt of a Warrant Exercise Notice, of (x) the receipt of such Warrant Exercise Notice and certificate or certificates for the number of full Warrant Shares issuable upon the exercise of such Warrants exercised together with cash, if any, as provided in accordance with Section 16 hereof; PROVIDED, HOWEVER, that if any consolidation, merger or lease or sale of assets is proposed to be effected by the terms and conditions Company as described in subsection (j) of this Warrant AgreementSection 14 hereof, (y) the instructions with respect to delivery of the or a tender offer or an exchange offer for shares of Common Stock of the Company deliverable shall be made, upon such exercise, subject to the timely receipt from the Depository surrender of the necessary information, Warrants 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.
Price as aforesaid, the Successor (g) All questions as to the validityhereinafter defined), 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 finalapplicable, non-appealable judgment of a court of competent jurisdiction)shall, 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 possible, but in any event not later than 10 two business days thereafter), issue and cause to be delivered 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 full number of Warrant Shares to which issuable upon the exercise of such holder is entitledWarrants in the manner described in this sentence together with cash, if any, as provided in fully registered form, registered in such name or names as may be directed by such holderSection 16 hereof. Such Warrant Shares 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 Warrant Shares as of the close of business on the date of the delivery surrender of such Warrants and payment of the Exercise Price. No fractional shares shall be issued upon exercise of any Warrants in accordance with Section 16 hereof. The Company will pay to the holder of the Warrant at the time of exercise an amount in cash equal to the current market value of any such fractional share of Common Stock less a corresponding fraction of the Exercise Price. The Warrants shall be exercisable, at the election of the holders thereof. If , either in full or from time to time in part (in whole shares) and, in the event that a certificate evidencing Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time prior to the Expiration Date, a new certificate evidencing the remaining Warrant or Warrants will be issued, and the Warrant Agent shall cause a notation is hereby irrevocably authorized to be made countersign and to deliver the required new Warrant Certificate or Certificates pursuant to the records maintained provisions of this Section and of Section 4 of this Agreement, and the Company, whenever required by the DepositoryWarrant Agent, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellon, as custodian for the Depository, will supply the Warrant Agent will cause with Warrant Certificates duly executed on behalf of the Company for such custodian to make an appropriate notation on the Global purpose. All 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) Certificates surrendered 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 Certificates shall be held by the Warrant Agent until termination of its duties hereunder, at which time it shall deliver such cancelled Warrants to any successor Warrant Agent, if applicable, otherwise to the Company. Upon receipt by the Company, such cancelled Warrant Certificates 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 account promptly to the Company as directed by the Company by the end of each day or on the next business day following each day on which with respect to 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company all funds monies received by the Warrant Agent in payment for the purchase of the aggregate Exercise PriceWarrant Shares through the exercise of such Warrants. The All certificates representing Warrant Agent Shares issued in a transaction exempt from registration under the Securities Act pursuant to Section 4(2) thereof shall confirm such information to bear the Company in writing as promptly as practicable.
following legend (k) provided that if no legend is required none shall be placed on the Warrant Shares): THIS SECURITY MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES ABSENT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED AND ANY APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE EXEMPTION FROM REGISTRATION REQUIREMENTS. The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunderhereunder available for inspection by the holders during normal business hours at its office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may request.
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, Agreement each Warrant holder Warrantholder shall have the right, which may be exercised in whole commencing on or in part, at any time and from time after the earliest to time, beginning on the date occur of original issuance (a) an Initial Public Offering of the Warrant pursuant to Company or a Qualifying IPO of Parent, (b) the terms occurrence of this Warrant Agreement an Event of Default (as defined in the Indenture), (c) the occurrence of a Change of Control (as defined in the Indenture), (d) any merger or consolidation of Parent or the sale, transfer or conveyance of all or substantially all of the assets of the Company (determined on a consolidated basis for the Company and ending at its Subsidiaries), (e) the redemption, repayment or defeasance of all the Notes or (f) November 15, 2004 (the earliest such date, the "Trigger Date"), until 5:00 p.m., New York City time, on the date that is the seven year anniversary of the Effective Date May 15, 2011 (the “"Expiration Date”"), to exercise each Warrant and receive from the Company upon the exercise of each Warrant 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 Warrant and payment of the aggregate Exercise Price then in effect (as defined below) 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 such time. In the event of an Initial Public Offering of the Company, the Company will have the right to require all Holders of Warrants to exercise their Warrants upon consummation of the Initial Public Offering; provided that the resale of Warrant Shares issued upon exercise to the Holders shall have been registered under the Securities Act. To exercise this right, the Company must provide Holders with written notice at least ten Business Days prior to consummation of the Initial Public Offering. The price per share at which Warrant Shares shall be purchasable upon exercise of Warrants shall be equal to $0.01 (the "Exercise Price"), subject to adjustment pursuant to Section 13. A Warrant may be exercised upon surrender at the office or agency of the Company maintained for such purpose, which initially will be at the corporate trust office of the Warrant Agent in New York, New York, located at ▇/▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, of the Warrant Certificate or Certificates evidencing the Warrants to be exercised with the form of election to purchase on the reverse thereof (the "Election to Exercise") duly filled in and signed, which signature shall be guaranteed in accordance with the provisions set forth in the Warrant Certificate. The "Exercise Date" for a Warrant shall be the date on and after the Trigger Date when all of the items referred to in the immediately preceding sentence and the next paragraph are received by the Warrant Agent at or prior to 11 a.m., New York City time, on a Business Day and the exercise of the Warrants will be effective as of such Exercise Date. If any items referred to in such sentence are received after 11 a.m., New York City time, on a Business Day, the exercise of the Warrants to which such item relates will be effective on the next succeeding Business Day. Notwithstanding the foregoing, in the case of an exercise of Warrants on the Expiration Date, if all of the items referred to in such sentence are received by the Warrant Agent at or prior to 5 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 items relate will be effective 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.
Appears in 1 contract
Sources: Warrant Agreement (Huntsman CORP)
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, each Warrant holder 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 upon payment of the Warrant pursuant to Exercise Price in accordance with the terms of this Warrant Agreement Agreement, from and ending at after the date of issuance of such Warrants until 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 Warrant Agent on behalf of the Company the number of fully paid and nonassessable Warrant Shares which the holder 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 Warrants. Each Warrant Shares. The Company shall promptly provide the Warrant Agent with written notice of the Expiration Date. After not exercised on or before 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 such time, on the Expiration Date.
(db) Unless The Warrants may be exercised pursuant during normal business hours on any Business Day on or prior to a Cashless Exercisethe Expiration Date upon surrender to the Warrant Agent on behalf of the Company at the principal office of the Warrant Agent of the certificate or certificates evidencing the Warrants to be exercised with the form of subscription to purchase on the reverse thereof duly completed and signed, and upon payment to the Warrant Agent for the account of the Company of the Exercise Price as adjusted as herein provided, for each of the Warrant Shares in respect of which such Warrants are then exercised. Payment of the aggregate Exercise Price for the number of Warrant Shares specified in the subscription form shall be made by wire transfer or by certified or official bank check payable to the order of the Company in immediately available funds 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)America.
(ec) Any exercise Upon surrender 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 Warrants 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 informationSection 7, 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 Price 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 Dateprovided above, the Warrant Agent shall thereupon promptly notify the Company, and the Warrant Agent shall deliver or cause a notation to be made to the records maintained by the Depositorydelivered, andas promptly as possible thereafter, but in any event within three (3) Business Days of receipt of such surrender and payment, 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 Holder of such Warrant Shares on the date such Warrant Exercise Notice is delivered.
(i) As provided in Section 16 hereof, no fractional shares Certificate appropriate evidence of Common Stock shall be issued upon exercise ownership 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.
Appears in 1 contract
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 until 5:00 p.m., New York, New York City timetime on __________ __, on the date that is the seven year anniversary of the Effective Date 2002 (the “Expiration Date”"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 and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company shall promptly provide the ; PROVIDED, HOWEVER, that no 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 holder 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”) entitled to exercise the Warrant to the Company and the Warrant Agent such holder's Warrants at the addresses set forth in Section 23 no later than 5:00 p.m.any time unless, 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 (i) a registration statement under the Securities Act of Common Stock will be issuable via 1933, as amended (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 "SECURITIES ACT"), relating to the Warrant AgentShares has been filed with, and declared effective by, the Securities and Exchange Commission (the "SEC"), and no stop order suspending the effectiveness of such registration statement has been issued by the SEC or (ii) 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 issuance of the number of shares of Common Stock to be issued on such exercise, Warrant Shares is permitted pursuant to this Section 9(b), is accurate or correct, nor shall an exemption from 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 registration requirements 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 Securities Act. Each Warrant, when exercised, will entitle the holder thereof to purchase one fully paid and nonassessable share of Common Stock at the Exercise Price then in effect for such share of Common StockPrice. Each Any 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.such time. No adjustments as to dividends will be made upon exercise of the Warrants. The Warrants may be exercised by surrendering to the Warrant Agent the Warrant Certificates evidencing the Warrants to be exercised with the accompanying form of election to purchase properly completed and executed, New York City time, on together with payment of the Expiration Date.
(d) Unless exercised pursuant to a Cashless Exercise, Exercise Price. Payment of the Exercise Price shall may be payable made (A) by tendering Warrants having a fair market value equal to the Company Exercise Price, (B) in lawful money the form of the United States of America either cash or by certified or official bank or bank cashier’s check made payable to the order of the Company or (or if agreed to in C) by any combination of Warrants and cash. For purposes of clause (A) above, the sole and absolute discretion fair market value of the CompanyWarrants shall be determined as follows: (A) if the Common Stock is publicly traded and listed on the Nasdaq National Market or a national securities exchange, the fair market value shall be equal to the number of shares represented by wire transfer such Warrant multiplied by the greater of (1) the difference between (a) the average closing price as quoted on the Nasdaq National Market of the Common Stock for each of the ten trading days immediately prior to the exercise date (or, if the Common Stock is listed on a national securities exchange, the average closing price as reported on such national securities exchange during such ten trading day period) and (b) the Exercise Price, and (2) zero; or (B) if the Common Stock is not publicly traded, or otherwise is not listed on a national securities exchange, the fair market value of the Warrants shall be equal to the value per share as determined in immediately available funds to an account arranged with good faith by the Board of Directors of the Company prior to exercise(the "BOARD OF DIRECTORS").
(e) Any exercise of . In the event that Warrants are surrendered by a Warrant pursuant holder in payment of the Exercise Price, the Warrant Agent shall notify the Company of such, which notice shall also include the amount of the Exercise Price and the amount of cash, if any, received by the Warrant Agent as partial payment of the Exercise Price. Within a reasonable time of receiving such notice, the Company shall advise the Warrant Agent whether the Warrant Agent has received payment in full of the Exercise Price. Subject to the terms provisions of this Warrant Agreement Section 10 hereof, upon such surrender of Warrants and payment of the Exercise Price, the Company shall issue and cause to be irrevocable and shall constitute a binding agreement between delivered with all reasonable dispatch to or upon the written order of the holder and in such name or names as the CompanyWarrant holder may designate, enforceable a certificate or certificates for the number of full Warrant Shares issuable upon the exercise of such Warrants together with cash, if any, as provided in accordance with its terms.
(f) The Warrant Agent shall:
Section 16 hereof; PROVIDED, HOWEVER, that if any consolidation, merger or lease or sale of assets is proposed to be effected by the Company as described in subsection (i) examine all Warrant Exercise Notices and all other documents delivered to it by of Section 14 hereof, 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 tender offer or an exchange offer for shares of Common Stock of the Company deliverable shall be made, upon such exercise, subject to the timely receipt from the Depository surrender of the necessary information, Warrants 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.
Price as aforesaid, the Successor (g) All questions as to the validityhereinafter defined), 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 finalapplicable, non-appealable judgment of a court of competent jurisdiction)shall, 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 possible, but in any event not later than 10 two business days thereafter), issue and cause to be delivered 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 full number of Warrant Shares to which issuable upon the exercise of such holder is entitledWarrants in the manner described in this sentence together with cash, if any, as provided in fully registered form, registered in such name or names as may be directed by such holderSection 16 hereof. Such Warrant Shares 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 Warrant Shares as of the close of business on the date of the delivery surrender of such Warrants and payment of the Exercise Price. No fractional shares shall be issued upon exercise of any Warrants in accordance with Section 16 hereof. The Company will pay to the holder of the Warrant at the time of exercise an amount in cash equal to the current market value of any such fractional share of Common Stock less a corresponding fraction of the Exercise Price. The Warrants shall be exercisable, at the election of the holders thereof. If , either in full or from time to time in part (in whole shares) and, in the event that a certificate evidencing Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time prior to the Expiration Date, a new certificate evidencing the remaining Warrant or Warrants will be issued, and the Warrant Agent shall cause a notation is hereby irrevocably authorized to be made countersign and to deliver the required new Warrant Certificate or Certificates pursuant to the records maintained provisions of this Section and of Section 4 of this Agreement, and the Company, whenever required by the DepositoryWarrant Agent, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellon, as custodian for the Depository, will supply the Warrant Agent will cause with Warrant Certificates duly executed on behalf of the Company for such custodian to make an appropriate notation on the Global purpose. All 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) Certificates surrendered 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 Certificates shall be held by the Warrant Agent until termination of its duties hereunder, at which time it shall deliver such cancelled Warrants to any successor Warrant Agent, if applicable, otherwise to the Company. Upon receipt by the Company, such cancelled Warrant Certificates 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 account promptly to the Company as directed by the Company by the end of each day or on the next business day following each day on which with respect to 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company all funds monies received by the Warrant Agent in payment for the purchase of the aggregate Exercise PriceWarrant Shares through the exercise of such Warrants. The All certificates representing Warrant Agent Shares issued in a transaction exempt from registration under the Securities Act pursuant to Section 4(2) thereof shall confirm such information to bear the Company in writing as promptly as practicable.
(k) following legend: THIS SECURITY MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES ABSENT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED AND ANY APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE EXEMPTION FROM REGISTRATION REQUIREMENTS. The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunderhereunder available for inspection by the holders during normal business hours at its office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may request.
Appears in 1 contract
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 at any time, and from time to time, in whole or in part, at any time and from time to time, beginning during the period commencing on the date of original issuance of the Global Warrant Certificates pursuant to the terms of this Warrant Agreement and ending at 5:00 p.m., p.m. New York City time, on the date that is the seven year tenth anniversary of the Plan Effective Date (the “Expiration Date”), to properly 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 and payment of the aggregate Exercise Price then in effect for such Warrant Shares.
(b) Subject to the adjustments set forth in Section 13, each Warrant, when exercised, will entitle the holder thereof to purchase such number of shares of Common Stock for each such Warrant as set forth in Section 1 hereof at the Exercise Price then in effect as set forth in Section 1 (as may be adjusted pursuant to Section 13 hereof). The Company shall promptly provide the Each Warrant Agent with written notice of not exercised pursuant to this Warrant Agreement prior to 5:00 p.m., New York City time, on the Expiration Date. After Date shall become void and all rights thereunder and all rights in respect thereof under this Warrant Agreement shall cease as of such time.
(c) The holder of Warrants may, until 5:00 p.m., New York City time, on the Expiration Date, the Warrants will become wholly void and of no value. Prior exercise, in whole or in part, at any time or from time to the delivery of any shares of Common Stock that the Company shall be obligated time, such holder’s right 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 purchase Warrant Shares by:
(i) providing written notice of such election (a “Warrant Exercise Notice”) to exercise the Warrant Warrants to the Company and the Warrant Agent at the addresses set forth in Section 23 Warrant Agent Office, by overnight courier no later than 5:00 p.m., New York City time, on the Expiration Date, which Warrant Exercise Notice shall be in the form of an election to purchase Warrant Shares substantially in the form set forth either (x) in Exhibit A hereto for holders who hold Book-Entry WarrantsB-1 hereto, properly completed and executed by the holder, provided that such written notice may only be submitted by a holder with respect to Book-Entry Warrants; or (y) in Exhibit B hereto for holders who hold interest in B-2 hereto, properly completed and executed by the holder, provided that such written notice may only be submitted with respect to Warrants held 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 applicable Settlement DateDate (as defined below), 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 applicable aggregate Exercise Price for the Warrant Shares thereby purchased (the “Exercise Amount”), together with all applicable taxes and charges, by having the Company (x) withhold, from the applicable Exercise Price multiplied by the number of shares of Common Stock that would otherwise be delivered to such holder of Warrants upon such exercise, Warrant Shares issuable upon exercise of the Warrants so exercised equal in respect value to the aggregate Exercise Price as to such Warrant Shares, based on the market price of the Common Stock on the trading day on which any such Warrants are being exercised or and the Warrant Exercise Notice is delivered to the Warrant Agent pursuant to this Section 9. For the avoidance of doubt, if Warrants are exercised such that the Exercise Price would exceed the value of the Warrant Shares issuable upon exercise, no amount shall be due and payable by the holder of Warrants to the Company. The date three business days after a Warrant Exercise Notice is delivered is referred to for all purposes under this Warrant Agreement as the “Settlement Date”.
(yd) 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 prior to 5:00 p.m., New York City time, on the Expiration Date, but the deliveries and payments specified in clause (iiSection 9(c)(ii) and (iiiSection 9(c)(iii) above are effected thereafter after the Expiration Date 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 be 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, Date for the Exercise Price shall be payable to the Company in lawful money purposes 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)this Warrant Agreement.
(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; provided that a holder may condition its exercise of a Warrant on the consummation of a Reorganization Event (as defined below).
(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) where a Warrant Exercise Notice or other document appears on its face to have been improperly completed or executed or some other irregularity in connection with the exercise of the Warrant exists, the Warrant Agent shall endeavor to inform the appropriate parties (including the person submitting such instrument) of the need for fulfillment of all requirements, specifying those requirements which appear to be unfulfilled;
(iii) inform the Company of and cooperate with and assist the Company in resolving any reconciliation problems between relating to the Warrant Exercise Notices received and delivery of Warrants to the Warrant Agent’s account;
(iiiiv) advise the Company, no later than two three (3) 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 exerciseWarrant Shares, subject to the timely receipt from the Depository of the necessary information, and (z) such other information as the Company shall reasonably require;; and
(ivv) subject to the Common Stock Warrant Shares 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 reasonably determined by the Company in its sole discretiongood faith, 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 gross negligence, willful misconduct or bad faith (each as determined by a final, non-non appealable judgment order 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 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 unlawfulform. 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 The Company nor the Warrant Agent shall be under any no 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)Warrant, the Company shall issue, or otherwise deliver, in authorized denominations to or upon the order of the holder of the Warrants, such Warrant 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 Depository, the number of shares of Common Stock Warrant Shares 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 Warrant Shares registered on the books of the Company’s stock 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. Warrants shall be exercisable during the period provided for in Section 9(a) at the election of the holder thereof, either as an entirety or from time to time for a portion of the number of Warrant Shares issuable upon exercise of such Warrants. If fewer less than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the exercise of Warrants are exercised at any time prior to 5:00 p.m., New York City time, on the Expiration Date, a new Global Warrant Certificate(s) shall be issued for the Warrant Agent shall cause a notation to be made to the records maintained remaining number of Warrants evidenced by the Depository, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellonso surrendered, as custodian for the Depository, and the Warrant Agent will cause such custodian is hereby authorized to make an appropriate notation on countersign the new Global Warrant Certificate Certificate(s) pursuant to reflect such reduction in Warrants represented by the Global Warrant Certificateprovisions of Section 6 hereof and this Section 9. The Person 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 For purposes of this Warrant Agreement, a “business day” means any day other than a Saturday, Sunday or a day on which banking institutions in New York City are authorized or obligated by law, regulation or executive order to close or remain closed. In accordance with Section 16 15 hereof, no fractional shares of Common Stock shall be issued upon exercise of any Warrants.
(j) If all of the Warrants evidenced by a All Global Warrant Certificate have been exercised, such Global Warrant Certificate Certificates surrendered upon exercise of Warrants shall be cancelled by the Warrant Agent. Such cancelled Global Warrant Certificate Certificates 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 Warrant Shares issued upon exercise of a Warrant, (ii) the notation to the records delivery of the Depository reflecting Global Warrant Certificates evidencing 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 practicablewriting.
(k) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunder, and provide, at the Company’s expense, copies thereof to any registered holder of the Warrants requesting, in writing, such copy prior to 5:00 p.m., New York City time, on the Expiration Date. The Company shall supply the Warrant Agent from time to time with such number of copies of this Warrant Agreement as the Warrant Agent may reasonably request.
Appears in 1 contract
Sources: Warrant Agreement (New Media Investment Group Inc.)
Terms of Warrants; Exercise of Warrants. (a) The initial exercise price per share at which Warrant Shares shall be purchasable upon the exercise of the Warrants (the "Exercise Price") shall be equal to $6.25 per share. Each Warrant shall be initially exercisable for one share of Common Stock. Each Warrant Certificate shall represent that number of Warrants set forth on the Warrant Certificate. Subject to the terms of this Warrant Agreement, each Warrant holder Warrantholder 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 Warrants until 5:00 p.m., New York City timetime on July 20, on the date that is the seven year anniversary of the Effective Date 2006 (the “Expiration Date”"Exercise Period"), to exercise each Warrant and receive from the Company the number of fully paid and nonassessable Warrant Shares which the holder Warrantholder may at the time be entitled to receive on exercise of such the Warrants upon and 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 If not exercised prior to 5:00 p.m., New York City time, on the Expiration DateJuly 20, 2006, 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 such time, on the Expiration Date.
(db) Unless The Warrants may be exercised pursuant upon surrender to the Company at its principal office, which is currently located at the address listed in Section 12 hereof, of the Warrant Certificate or Certificates evidencing the Warrants to be exercised with the form of election to purchase on the reverse thereof duly filled in and signed, which signature shall be guaranteed by a Cashless Exerciseparticipant in a recognized Signature Guarantee Medallion Program and such other documentation as the Company may reasonably request, and upon payment to the Company for the account of the Company of the Exercise Price which is set forth in the form of Warrant Certificate attached hereto as Exhibit A as adjusted as herein provided, for the number of Warrant Shares in respect of which such Warrants are then exercised. Subject to the provisions of Section 4(c) hereof, payment of the aggregate Exercise Price shall be payable to the Company made in lawful money of the United States of America either cash or 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)New York Clearing House Funds.
(ec) Any exercise of a Warrant pursuant Subject to the terms time limitations set forth in subsections (i) and (ii) below, if at the time a Warrantholder exercises any Warrants hereunder, the Company does not have in effect a current Registration Statement with the Securities and Exchange Commission (the "Commission") under the Securities Act of this Warrant Agreement shall be irrevocable and shall constitute a binding agreement between 1933, as amended (the holder and "Act"), the CompanyWarrantholder may choose one of the following, enforceable in accordance with its terms.
(f) The Warrant Agent shallbut not both:
(i) examine all Warrant At any time after the initial effectiveness of the Registration Statement contemplated by Section 8(b), rather than paying the aggregate Exercise Notices and all other documents delivered to it Price in cash or by certified 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 official bank check in accordance with their terms;
(iiprovisions of Section 4(b) inform above, the Company Warrantholder shall be entitled to effect a "cashless exercise" as described in this Section 4(c)(i). For the purposes 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 Companythis Section 4(c)(i), no later than two business days after receipt a "cashless exercise" shall mean an exercise of a Warrant where the payment of the Exercise NoticePrice is made with Warrant Shares issuable upon exercise of a Warrant, which Warrant Shares shall be valued at the Fair Market Value (as defined below) of the Common Stock on the date of exercise. For purposes hereof, the "Fair Market Value" of the Common Stock shall mean the closing price of the Common Stock on the NASDAQ Stock Market (xor any successor stock market) for the receipt day on which the notice of such Warrant Exercise Notice and exercise is sent or delivered. In the event of a Cashless Exercise, 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 Shares issuable 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 Warrantholder shall be determined by using 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 following formula: X = Y (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 A - B)/A where: X = 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 issued to the Warrantholder on exercise: Y = the number of 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 purchasable under the Warrants surrendered A = the Fair Market Value of the close of business Common Stock on the date of exercise; and B = the delivery thereof. If fewer than all then current Exercise Price 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.; or
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant AgreementCertificate, each a Warrant holder shall have be exercisable, at the rightelection of the Holder thereof, either in full or from time to time in part during the period commencing at the opening of business on the Issue Date and until the Expiration Time, and shall entitle the Holder thereof to receive, from the Company, Warrant Shares, which may be exercised in whole or in partsatisfied, at any time and from time to timethe Holder’s option, 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 a Net Share Settlement pursuant to Section 2.01(c); provided that is the seven year anniversary of the Effective Date (the “Expiration Date”), Holders shall be able to exercise each Warrant and receive from their Warrants only if 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 is exempt from, or in compliance with, the registration requirements of the aggregate Exercise Price then in effect Securities Act and all applicable Canadian securities laws requirements and such securities are qualified for such Warrant Shares. The Company shall promptly provide sale or exempt from qualification under the Warrant Agent with written notice applicable securities laws of the Expiration Datestate or province in which the Holder resides. 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 (“Each 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 not 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 Time shall become void and all rights thereunder and all rights in respect thereof under this Warrant Agreement Certificate shall cease as of 5:00 p.m.such time.
(b) In order to exercise all or any of the Warrants, New York City timethe Holder must deliver to the Company (i) this Warrant Certificate, on and (ii) the Expiration Dateform of election to exercise appended hereto as Exhibit A duly filled in and signed (the “Exercise Notice”), which Exercise Notice shall set out whether the Holder has elected (a “Net Share Settlement Election”) to have the exercise of Warrants set forth in the Exercise Notice (the “Warrant Exercise”) net share settled pursuant to the procedures set forth in Section 2.01(c) (a “Net Share Settlement”).
(c) If the Holder makes a Net Share Settlement Election pursuant to Section 2.01(b) with respect to a Warrant Exercise, then the Warrant Exercise shall be “net share settled” whereupon the Warrant will in exchange for the payment of the Net Share Settlement Election Price be converted into Common Shares, after which the Company will issue to the Holder the Warrant Shares equal to the result obtained by (i) subtracting B from A, (ii) dividing the result by A, and (iii) multiplying the difference by C as set forth in the following equation: X = ((A—B)/A) × C where: X = the Warrant Shares issuable upon exercise pursuant to this paragraph (c). A = the Market Value. B = the Exercise Price. C = the number of Common Shares as to which Warrants are then being exercised (the “Exercise Shares”). If the foregoing calculation results in X being a negative number, then no Common Shares shall be issued upon exercise pursuant to this paragraph (c). The amount added to the stated capital of the Common Shares issued pursuant to the Net Share Settlement Election shall be equal to the Net Share Settlement Election Price.
(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 Upon compliance 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)provisions set forth above, the Company shall issuedeliver or cause to be delivered with all reasonable dispatch, or otherwise deliver, in authorized denominations to or upon the written 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 Holder 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 the Holder may designate, a certificate or certificates for, or reasonable evidence of book entries made by the transfer agent in respect of the Common Shares with respect to, the Warrant Shares issuable upon the exercise of such Warrants or other securities or property to which such Holder is entitled, provided that the number of Warrant Shares shall be directed by such holderrounded up to the nearest whole share, no fractional Common Shares will be issuable upon any exercise of the Warrants and the Holder will not be entitled to any cash payment or compensation in lieu of a fractional Common Share. Such Warrant Shares certificate or certificates or other securities or property shall be deemed to have been issued issued, and any person so designated to be named therein shall be deemed to have become a holder of record of such Warrant Shares or other securities or property, as of the close of business on the date of the delivery thereof. If fewer than all surrender of such Warrants, notwithstanding that the stock transfer books of the Warrants evidenced by a Global Warrant Certificate surrendered upon Company shall then be closed or 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 certificates or certificates for the Warrant Shares are to be issued (other securities 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 property have become the holder of record of such Warrant Shares on the date such Warrant Exercise Notice is not been delivered.
(ie) As provided in Section 16 hereofIf less than all the Warrants represented by this Warrant Certificate are exercised, no fractional shares upon surrender of Common Stock this Warrant Certificate, a new Warrant certificate of the same tenor and for the number of Warrants which were not exercised shall be issued upon exercise of any Warrantsexecuted by the Company and delivered to the Holder.
(jf) If all of Certificates or book entries representing Warrant Shares shall bear the Warrants evidenced following restricted legend:
(g) Notwithstanding anything to the contrary herein, unless otherwise agreed by a Global the Company, the Warrant Certificate have been exercised, such Global Warrant Certificate Shares shall be cancelled in uncertificated, book entry form as permitted by the Warrant Agent. Such cancelled Global Warrant Certificate shall then be disposed of by or at the direction Bylaws of the Company in accordance with applicable law. The Warrant Agent shall and the Business Corporations Act (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 practicableOntario).
(k) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunder.
Appears in 1 contract
Sources: Series a Notes and Common Share Purchase Agreement (Akumin Inc.)
Terms of Warrants; Exercise of Warrants. (a) Subject Each Series A Warrant not exercised prior 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 [insert fifth anniversary of the Effective Date of Plan] (the “"Series A 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 such time. Each Series B Warrant not exercised prior to 5:00 p.m., New York City time, on [insert third anniversary of Effective Date of Plan] (the "Series B Expiration Date") shall become void and all rights thereunder and all rights in respect thereof under this Agreement shall cease as of such time.
(db) Unless exercised pursuant Subject to a Cashless Exercisethe terms of this Agreement, each Series A Warrant shall be exercisable, in full and not in part, at the election of the Holder thereof, during the period commencing at the opening of business on the Issue Date and until 5:00 p.m., New York City time on the Series A Expiration Date, and shall entitle the Holder thereof to receive from the Company [ ] fully paid and nonassessable shares of Common Stock upon exercise of such Series A Warrant and payment of the Series A Exercise Price shall be payable to the Company then in lawful money of the United States of America either effect in cash, by wire transfer or by certified or official bank or bank cashier’s check made payable to the order of the Company (or if agreed Company. Subject to the terms of this Agreement, each Series B Warrant shall be exercisable, in full and not in part, at the sole and absolute discretion election of the CompanyHolder thereof, during the period commencing at the opening of business on the Issue Date and until 5:00 p.m., New York City time on the Series B Expiration Date, and shall entitle the Holder thereof to receive from the Company [ ] fully paid and nonassessable shares of Common Stock upon exercise of such Series B Warrant and payment of the Series B Exercise Price then in effect in cash, by wire transfer or by certified or official check payable to the order of the Company.
(c) In order to exercise all or any of the Warrants, the Holder thereof must deliver to the Warrant Agent at its Corporate Trust Office (i) the Warrant Certificates evidencing such Warrants, (ii) the form of election to purchase on the reverse thereof duly filled in immediately available funds and signed, which signature shall be medallion guaranteed by an institution which is a member of a Securities Transfer Association recognized signature guarantee program, and (iii) payment to an the Warrant Agent for the account arranged with of the Company prior of the then-current Series A Exercise Price (in the case of exercise of the Series A Warrants) or Series B Exercise Price (in the case of exercise of the Series B Warrants), in the manner set forth in Section 4.01(b) for the number of Warrant Shares in respect of which the Warrants are being exercised.
(d) No fractional Warrant Shares are to exercise)be issued upon any exercise of a Warrant, but rather cash in lieu of fractional shares shall be delivered to the Holder as provided in Section 6.02.
(e) Any exercise of If fewer than all the Warrants represented by 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 faceCertificate are exercised, such Warrant Exercise Notices Certificate shall be surrendered and any such other documents have been a new Warrant Certificate of the same series and for the number of Warrants which were not exercised shall be executed and completed in accordance with their terms;
(ii) inform by 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 delivered 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 countersign 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 new 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 formCertificate, registered in such name or names as may be directed in writing by such holder. Such Warrant Shares the Holder, and 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 deliver the close of business on the date of the delivery thereof. If fewer than all of the Warrants evidenced by a Global new Warrant Certificate to the Person or Persons entitled to receive the same.
(f) All Warrant Certificates 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 Certificates shall then be disposed of by or at the direction of Warrant Agent in a manner satisfactory to the Company in accordance with applicable lawCompany. The Warrant Agent shall (x) advise an authorized representative of account promptly to the Company as directed by the Company by the end of each day or on the next business day following each day on which with respect to 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company all funds monies received by the Warrant Agent in payment for the purchase of the aggregate Exercise Price. The Warrant Agent shall confirm Shares through the exercise of such information to the Company in writing as promptly as practicableWarrants.
(kg) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunderhereunder available for inspection by the Holders during normal business hours at its Corporate Trust Office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may reasonably request.
(h) Notwithstanding anything to the contrary set forth in this Agreement or in any Warrant Certificate, no Holder may exercise a Warrant if the Company determines that the issuance of Warrant Shares to the Holder of such Warrant upon the exercise thereof would cause the percentage of shares of Common Stock then outstanding that is owned by Aliens to exceed the Permitted Percentage. The Company may in its discretion require any Holder that seeks to exercise a Warrant to submit such proof of citizenship as the Company may require in order to determine that the issuance of Warrant Shares to the Holder of such Warrant upon the exercise thereof would not cause the percentage of shares of Common Stock then outstanding that is owned by Aliens to exceed the Permitted Percentage.
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. The initial exercise price per share at which Warrant Shares shall be purchasable upon the exercise of Warrants (athe "Exercise Price") shall be equal to $6.56 per share. Each Warrant shall be initially exercisable for one share of Common Stock. 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 Warrants until 5:00 p.m., New York City timetime on February __, on the date that is the seven year anniversary of the Effective Date 2004 (the “Expiration Date”"Exercise Period"), 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 and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company shall promptly provide the Each Warrant Agent with written notice of the Expiration Date. After not exercised prior to 5:00 p.m., New York City time, on the Expiration DateFebruary __, 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 2004 shall become void and all rights thereunder and all rights in respect thereof under this Warrant Agreement agreement shall cease as of 5:00 p.m.such time. A Warrant may be exercised upon surrender to the Company at its principal office, New York City timewhich is currently located at the address listed in Section 13 hereof, of the certificate or certificates evidencing the Warrants to be exercised with the form of election to purchase on the Expiration Date.
(d) Unless exercised pursuant reverse thereof duly filled in and signed, which signature shall be guaranteed by a participant in a recognized Signature Guarantee Medallion Program and such other documentation as the Company may reasonably request, and upon payment to a Cashless Exercisethe Company for the account of the Company of the Exercise Price which is set forth in the form of Warrant Certificate attached hereto as Exhibit A as adjusted as herein provided, for the number of Warrant Shares in respect of which such Warrants are then exercised. Payment of the aggregate Exercise Price shall be payable to the Company made in lawful money of the United States of America either cash or by certified or official bank or bank cashier’s check made payable to the order of the Company (or if agreed in New York Clearing House Funds. Subject to in the sole provisions of Section 5 hereof, upon such surrender of Warrants and absolute discretion payment of the CompanyExercise Price, by wire transfer in immediately available funds to an account arranged with the Company prior shall issue and cause to exercise).
(e) Any be delivered within three business days to and in such name or names as the Warrant holder may designate a certificate or certificates for the number of full Warrant Shares issuable upon the exercise of a Warrant pursuant such Warrants together with cash as provided in Section 10; provided, however, that if any consolidation, merger or lease or sale of assets is proposed to be effected by the terms of this Warrant Agreement shall be irrevocable and shall constitute a binding agreement between the holder and the Company, enforceable Company as described in accordance with its terms.
(f) The Warrant Agent shall:
subsection (i) examine all Warrant Exercise Notices and all other documents delivered to it by of Section 9 hereof, 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 tender offer or an exchange offer for shares of Common Stock of the Company deliverable shall be made, upon such exercise, subject to the timely receipt from the Depository surrender of the necessary information, Warrants 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 Price 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. Moreoveraforesaid, 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 Warrantsshall, nor shall it incur any liability for the failure to give such notice.
(h) As as soon as reasonably practicable after the exercise of any Warrant (and possible, but in any event not later than 10 three business days thereafter), issue and cause to be delivered 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 full number of Warrant Shares to which issuable upon the exercise of such holder is entitled, Warrants in fully registered form, registered the manner described in such name or names this sentence together with cash as may be directed by such holderprovided in Section 10. Such Warrant Shares 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 Warrant Shares as of the close of business on the date of the delivery surrender of such Warrants and payment of the Exercise Price. The Warrants shall be exercisable, at the election of the holders thereof. If , either in full or from time to time in part and, in the event that a certificate evidencing Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time prior to the Expiration Datedate of expiration of the Warrants, a new certificate evidencing the remaining Warrant Agent shall cause a notation or Warrants will be issued. The Company may assume that any Warrant presented for exercise is permitted to be made to the records maintained by the Depository, and, to the extent the Global so exercised under applicable law and shall have no liability for acting in reliance on such assumption. All 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) Certificates surrendered 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 lawCompany. 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 hereunderhereunder available for inspection by the holders with reasonable prior written notice during normal business hours at its office.
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant AgreementWarrant, each Warrant holder the Warrantholder shall have the right, which may be exercised in whole or in part, at any time and from time to timeafter December 14, beginning on the date of original issuance of the Warrant pursuant to the terms of this Warrant Agreement and ending at 1998, but before 5:00 p.m., New York City timetime on December 14, on the date that is the seven year anniversary of the Effective Date 2003 (the “"Expiration Date”Time"), to exercise each Warrant and receive purchase from the Company up to the number of fully paid and nonassessable Warrant Shares which the holder Warrantholder 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, upon surrender to the Company at its principal executive office, of the certificate evidencing this Warrant Agreement shall to be irrevocable exercised, together with the attached Election to Exercise form duly filled in and shall constitute a binding agreement between the holder signed, 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 upon payment 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 Price (as defined in 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 determined in accordance with the provisions of Section 7 and 8 hereof) for the number of Shares with respect to which such Warrant is then exercised. Payment of the aggregate Warrant Price shall be made in cash, wire transfer or by cashier's check or any combination thereof.
(b) Subject to the terms and conditions of this Warrant, upon such surrender 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 such Warrant Price 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)aforesaid, the Company shall issue, or otherwise deliver, in authorized denominations promptly issue and cause 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 be delivered to the Depository for the account of such holder Warrantholder 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 person or persons as directed the Warrantholder may designate 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 Warrantswriting, 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 the Warrantholder may designate in writing) for the number of duly authorized, fully paid and non-assessable whole Shares to be directed by purchased upon the exercise of this Warrant, and shall deliver to the Warrantholder Common Stock or cash, to the extent provided in Section 9 hereof, with respect to any fractional Shares otherwise issuable upon such holdersurrender. Such Warrant Shares 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 Warrant Shares as of the close of business on the date of the delivery surrender of this Warrant and payment of the Warrant Price, notwithstanding that the certificates representing such Shares shall not actually have been delivered or that the Share and Warrant transfer books of the Company shall then be closed. This Warrant shall be exercisable, at the sole election of the Warrantholder, either in full or from time to time in part and, in the event that any certificate evidencing this Warrant (or any portion thereof. If fewer ) is exercised prior to the Termination Date with respect to less than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the exercise of Warrants are exercised Shares specified therein at any time prior to the Expiration Termination Date, a new certificate of like tenor evidencing the remaining portion of this Warrant Agent shall cause be issued by the Company, if so requested by the Warrantholder.
(c) Upon the Company's receipt of a notation facsimile or original of Warrantholder's signed Election to Exercise, the Company shall instruct its transfer agent to issue one or more stock Certificates representing that number of shares of Common Stock which the Warrantholder is entitled to purchase in accordance with the terms and conditions of this Warrant and the Election to Exercise attached hereto. The Company's transfer agent or attorney shall act as Registrar and shall maintain an appropriate ledger containing the necessary information with respect to each Warrant.
(d) Such exercise shall be effectuated by surrendering to the Company, or its attorney, the Warrants to be made converted together with a facsimile or original of the signed Election to Exercise which evidences Warrantholder's intention to exercise those Warrants indicated. The date on which the Election to Exercise is effective ("Exercise Date") shall be deemed to be the date on which the Warrantholder has delivered to the records maintained Company a facsimile or original of the signed Election to Exercise, as long as the original Warrants to be exercised are received by the DepositoryCompany or its designated attorney within 5 business days thereafter. As long as the Warrants to be exercised are received by the Company within five business days after it receives a facsimile or original of the signed Election to Exercise, and, the Company shall deliver to the extent Warrantholder, or per the Global Warrantholder's instructions, the shares of Common Stock to an address in the U.S., without restrictive legend or stop transfer instructions, within 5 business days of receipt of the Warrants to be converted.
(e) Nothing contained in this Warrant shall be deemed to establish or require the payment of interest to the Warrantholder at a rate in excess of the maximum rate permitted by governing law. In the event that the rate of interest required to be paid exceeds the maximum rate permitted by governing law, the rate of interest required to be paid thereunder shall be automatically reduced to the maximum rate permitted under the governing law and such excess shall be returned with reasonable promptness by the Warrantholder to the Company.
(f) It shall be the Company's responsibility to take all necessary actions and to bear all such costs to issue the Certificate of Common Stock as provided herein, including the responsibility and cost for delivery of an opinion letter to the transfer agent, if so required. The person in whose name the certificate of Common Stock is being held to be registered shall be treated as a shareholder of record on and after the exercise date. Upon surrender of any Warrants that are to be converted in part, the Company shall issue to the Warrantholder new Warrants equal to the unconverted amount, if so requested by The Bank of New York Mellon, as custodian Warrantholder. Nothing herein shall limit the Warrantholder's right to pursue actual damages for the DepositoryCompany's failure to maintain a sufficient number of authorized shares of Common Stock.
(g) The Company shall furnish to Warrantholder such number of prospectuses and other documents incidental to the registration of the Common Stock underlying the Warrants, 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 including any amendment of or supplements thereto.
(h) Each person in whose name any certificate or certificates for the Warrant Shares are to shares of Common Stock shall be issued (or such Warrant Shares are to be registered, in the case of a book-entry transfer) upon exercise of a Warrant shall for all purposes be deemed to have become the holder of record of the Common Stock represented thereby on the date on which the Warrant was surrendered and payment of the purchase price and any applicable taxes was made, irrespective of date of issue or delivery of such Warrant certificate, except that if the date of such surrender and payment is a date when the Shares transfer books of the Company are closed, such person shall be deemed to have become the holder of such Shares on the next succeeding date on which 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 lawShare transfer books are open. 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 not close such information to the Company in writing as promptly as practicableShare transfer books at any one time for a period longer than seven days.
(k) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunder.
Appears in 1 contract
Sources: Securities Subscription Agreement (Swissray International Inc)
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, each Holder of a Warrant holder shall have the right, which may be exercised in whole or in part, at any time and or from time to time, beginning on the date of original issuance of the Warrant pursuant time (i) prior to the terms Expiration Time in the case of this Warrant Agreement a Series A Warrant, and ending at 5:00 p.m., New York City time, (ii) on or after the date that is Stockholder Event and prior to the seven year anniversary Expiration Time in the case of the Effective Date (the “Expiration Date”)a Series B Warrant, 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 and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company shall promptly provide If the Stockholder Event has not occurred on or before the Stockholder Event Deadline (as defined in Section 11), each Holder of a Series B Warrant Agent with written notice of will have 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 right to exercise such Warrant for cash prior to the delivery of any shares of Common Stock that the Company shall Stockholder Event as provided in Section 11. No adjustments as to dividends will be obligated to deliver made upon proper exercise of the Warrants, the Company shall comply with all applicable federal and state laws, rules and regulations which require action to . A Warrant may 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 Time upon surrender to the purposes Company at the principal office of this the Warrant Agreement.
(b) Provided Agent of the Common Stock certificate or certificates evidencing the Warrants to be exercised with the form of election to purchase on the reverse thereof duly filled in and signed, which signature shall be guaranteed by a bank or trust company having an office or correspondent in the United States or a broker or dealer which is then listed or admitted for trading on a national member of a registered securities exchange or an over-the-counter market or comparable systemthe National Association of Securities Dealers, Inc., and subject upon payment to the provisions Warrant Agent for the account 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 of the exercise price (the “Exercise Price”) which is set forth in the forms of Warrant Certificates attached hereto as Exhibits A and B as adjusted as herein provided, for the number of shares Warrant Shares in respect 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 such Warrants are being then exercised; and M = the Market Price of . Warrants may be exercised on a share of Common Stock determined as of the day immediately preceding the day the Warrant Exercise Notice is delivered book-entry basis in any manner acceptable 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 Payment 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 aggregate Exercise Price shall be payable to the Company made (i) in lawful money of the United States of America either cash or by certified or official bank or bank cashier’s check made payable to the order of the Company or (or ii) if agreed to in at any time after the sole and absolute discretion earlier of (a) the Company, by wire transfer in immediately available funds to an account arranged with date the Company prior to exercise).
(e) Any exercise of a Warrant Registration Statement is filed pursuant to the Investor Rights Agreement and (b) May 1, 2005, any Holders are unable to exercise their Warrants for Warrant Shares pursuant to an effective Registration Statement or an available exemption from the registration requirements of the Securities Act (during any time other than the first ten business days of a Blackout Period, as such term is defined in the Investor Rights Agreement), then through the surrender of senior debt securities of the Company having a principal amount equal to the aggregate Exercise Price to be paid (the Company will pay the accrued interest on such surrendered debt securities in cash at the time of surrender notwithstanding the stated terms thereof). Subject to the provisions of Section 5 of this Warrant Agreement shall Agreement, upon such surrender of Warrants and payment of the Exercise Price the Company will issue and cause to be irrevocable and shall constitute a binding agreement between delivered with all reasonable dispatch to or upon the written order of 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 such name or on behalf of holders names 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 Companyholder may designate, no later than two business days after receipt of a Warrant Exercise Notice, of (x) the receipt of such Warrant Exercise Notice and certificate or certificates for the number of full Warrant Shares issuable upon the exercise of such Warrants exercised together with cash as provided in accordance with Section 9; provided, however, that if any consolidation, merger or lease or sale of assets is proposed to be effected by the terms and conditions Company as described in subsection (m) of Section 8 of this Warrant Agreement, (y) the instructions with respect to delivery of the or a tender offer or an exchange offer for shares of Common Stock of the Company deliverable will be made, upon such exercise, subject to the timely receipt from the Depository surrender of the necessary information, Warrants 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 Price 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. Moreoveraforesaid, 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 Warrantsshall, nor shall it incur any liability for the failure to give such notice.
(h) As as soon as reasonably practicable after the exercise of any Warrant (and possible, but in any event not later than 10 two business days thereafter), issue and cause to be delivered 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 full number of Warrant Shares to which issuable upon the exercise of such holder is entitled, Warrants in fully registered form, registered the manner described in such name or names this sentence together with cash as may be directed by such holderprovided in Section 9. Such Warrant Shares shall certificate or certificates will be deemed to have been issued and any person so designated to be named therein shall will 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 surrender of such Warrants and payment of the Exercise Price. The Warrants shall be exercisable, at the election of the holders thereof. If , either in full or from time to time in part and, in the event that a certificate evidencing Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time prior to the Expiration Datedate of expiration of the Warrants, a new certificate evidencing the remaining Warrant or Warrants will be issued, and the Warrant Agent shall cause a notation is hereby irrevocably authorized to be made countersign and to deliver the required new Warrant Certificate or Certificates pursuant to the records maintained provisions of this Section and of Section 3 of this Agreement, and the Company, whenever required by the DepositoryWarrant Agent, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellon, as custodian for the Depository, will supply the Warrant Agent will cause with Warrant Certificates duly executed on behalf of the Company for such custodian to make an appropriate notation on the Global purpose. All 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) Certificates surrendered 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 will be cancelled by the Warrant Agent. Such cancelled Global Warrant Certificate shall Certificates will then be disposed of by or at the direction of Warrant Agent in a manner satisfactory to the Company in accordance with applicable lawCompany. The Warrant Agent shall (x) advise an authorized representative of will account promptly to the Company as directed by the Company by the end of each day or on the next business day following each day on which with respect to 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company all funds monies received by the Warrant Agent in payment for the purchase of the aggregate Exercise PriceWarrant Shares through the exercise of such Warrants. The Warrant Agent shall confirm such information to the Company in writing as promptly as practicable.
(k) The Warrant Agent shall will keep copies of this Warrant Agreement and any notices given or received hereunderhereunder available for inspection by the holders during normal business hours at its office. The Company will supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may request.
Appears in 1 contract
Sources: Warrant Agreement (Interpool Inc)
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant AgreementWarrant, each Warrant holder the Warrantholder shall have the right, which may be exercised in whole or in part, at any time and from time to timeafter __________________, beginning but before 5:00 p.m. Pacific Daylight Time 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”Time"), to exercise each Warrant and receive purchase from the Company up to the number of fully paid and nonassessable Warrant Shares which the holder Warrantholder 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, upon surrender to the Company at its principal executive office, of the certificate evidencing this Warrant Agreement shall to be irrevocable exercised, together with the attached Election to Exercise Warrant form duly filled in and shall constitute a binding agreement between the holder signed, 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 upon payment 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 Price (as defined in 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 determined in accordance with the provisions of Section 7 and 8 hereof) or as provided in Section 3(a)(i) hereof, for the number of Shares with respect to which such Warrant is then exercised. Payment of the aggregate Warrant Price shall be made in cash, wire transfer or by cashier's check or any combination thereof.
(b) Subject to the terms and conditions of this Warrant, upon such surrender 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 such Warrant Price 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)aforesaid, the Company shall issue, or otherwise deliver, in authorized denominations promptly issue and cause 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 be delivered to the Depository for the account of such holder Warrantholder 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 person or persons as directed the Warrantholder may designate 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 Warrantswriting, 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 the Warrantholder may designate in writing) for the number of duly authorized, fully paid and non-assessable whole Shares to be directed by purchased upon the exercise of this Warrant, and shall deliver to the Warrantholder Common Stock or cash, to the extent provided in Section 9 hereof, with respect to any fractional Shares otherwise issuable upon such holdersurrender. Such Warrant Shares 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 Warrant Shares as of the close of business on the date of the delivery surrender of this Warrant and payment of the Warrant Price, notwithstanding that the certificates representing such Shares shall not actually have been delivered or that the Share and Warrant transfer books of the Company shall then be closed. This Warrant shall be exercisable, at the sole election of the Warrantholder, either in full or from time to time in part and, in the event that any certificate evidencing this Warrant (or any portion thereof. If fewer ) is exercised prior to the Termination Date with respect to less than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the exercise of Warrants are exercised Shares specified therein at any time prior to the Expiration Termination Date, a new certificate of like tenor evidencing the remaining portion of this Warrant Agent shall cause be issued by the Company, if so requested by the Warrantholder.
(c) Upon the Company's receipt of a notation facsimile or original of Warrantholder's signed Election to Exercise Warrant, the Company shall instruct its transfer agent to issue one or more stock Certificates representing that number of shares of Common Stock which the Warrantholder is entitled to purchase in accordance with the terms and conditions of this Warrant and the Election to Exercise Warrant attached hereto. The Company shall act as Registrar and shall maintain an appropriate ledger containing the necessary information with respect to each Warrant.
(d) Such exercise shall be effectuated by surrendering to the Company, or its attorney, the Warrants to be made converted together with a facsimile or original of the signed Election to Exercise Warrant which evidences Warrantholder's intention to exercise those Warrants indicated. The date on which the Election to Exercise Warrant is effective ("Exercise Date") shall be deemed to be the date on which the Warrantholder has delivered to the records maintained Company a facsimile or original of the signed Election to Exercise Warrant, as long as the original Warrants to be exercised are received by the DepositoryCompany or its designated attorney within five (5) business days thereafter. As long as the Warrants to be exercised are received by the Company within five (5) business days after it receives a facsimile or original of the signed Election to Exercise Warrant, and, the Company shall deliver to the extent Warrantholder, or per the Global Warrant Certificate is being held by The Bank of New York Mellon, as custodian for the DepositoryWarrantholder's instructions, the shares of Common Stock within three (3) business days of receipt of the Warrants to be converted.
(e) Nothing contained in this Warrant Agent will cause shall be deemed to establish or require the payment of interest to the Warrantholder at a rate in excess of the maximum rate permitted by governing law. In the event that the rate of interest required to be paid exceeds the maximum rate permitted by governing law, the rate of interest required to be paid thereunder shall be automatically reduced to the maximum rate permitted under the governing law and such custodian to make an appropriate notation on the Global Warrant Certificate to reflect such reduction in Warrants represented excess shall be returned with reasonable promptness by the Global Warrant CertificateWarrantholder to the Company.
(f) It shall be the Company's responsibility to take all necessary actions and to bear all such costs to issue the Certificate of Common Stock as provided herein, including the responsibility and cost for delivery of an opinion letter to the transfer agent, if so required. The Person person in whose name the certificate of Common Stock is to be registered shall be treated as a shareholder of record on and after the exercise date. Upon surrender of any Warrants that are to be converted in part, the Company shall issue to the Warrantholder new Warrants equal to the unconverted amount, if so requested by Warrantholder.
(g) The Company shall at all times reserve and have available all Common Stock necessary to meet exercise of the Warrants by all Warrantholders of the entire amount of Warrants then outstanding. If, at any time Warrantholder submits an Election to Exercise Warrant and the Company does not have sufficient authorized but unissued shares of Common Stock available to effect, in full, a exercise of the Warrants (a "Exercise Default", the date of such default being referred to herein as the "Exercise Default Date"), the Company shall issue to the Warrantholder all of the shares of Common Stock which are available, and the Election to Exercise Warrant as to any Warrants requested to be converted but not converted (the "Unconverted Warrants"), upon Warrantholder's sole option, may be deemed null and void. The Company shall provide notice of such Exercise Default ("Notice of Exercise Default") to all existing Warrantholders of outstanding Warrants, by facsimile, within one (1) business day of such default (with the original delivered by overnight or two day courier), and the Warrantholder shall give notice to the Company by facsimile within five (5) business days of receipt of the original Notice of Exercise Default (with the original delivered by overnight or two day courier) of its election to either nullify or confirm the Election to Exercise Warrant.
(h) The Company shall furnish to Warrantholder such number of prospectuses and other documents incidental to the registration of the shares of Common Stock underlying the Warrants, including any amendment of or supplements thereto. Warrantholder shall acknowledge in writing the receipt, the careful reading, and the understanding thereof, prior to any exercise under this Section 3.
(i) Each person in whose name any certificate or certificates for the Warrant Shares are to shares of Common Stock shall be issued (or such Warrant Shares are to be registered, in the case of a book-entry transfer) upon exercise of a Warrant shall for all purposes be deemed to have become the holder of record of the Common Stock represented thereby on the date on which the Warrant was surrendered and payment of the purchase price and any applicable taxes was made, irrespective of date of issue or delivery of such Warrant certificate, except that if the date of such surrender and payment is a date when the Shares transfer books of the Company are closed, such person shall be deemed to have become the holder of such Shares on the next succeeding date on which such Warrant Exercise Notice is delivered.
Share transfer books are open. The Company shall not close such Share transfer books at any one time for a period longer than seven (i7) As provided in Section 16 hereof, no fractional shares of Common Stock shall be issued upon exercise of any Warrantsdays.
(j) If all This Warrant is exercisable in whole or in part at the Exercise Price per share of Common Stock (as defined hereafter) payable hereunder, payable in cash or by certified or official bank check, or by "cashless exercise", by means of tendering this Warrant Certificate to the Company to receive a number of shares of Common Stock equal to the difference between the Market Value of the Warrants evidenced by a Global shares of Common Stock issuable upon exercise of this Warrant and the total cash exercise price thereof. Upon surrender of this Warrant Certificate have been exercisedwith the annexed Notice of Exercise duly executed, such Global Warrant Certificate together with payment of the Exercise Price for the shares of Common Stock purchased, the Holder shall be cancelled by entitled to receive a certificate or certificates for the Warrant Agentshares of Common Stock so purchased. Such cancelled Global Warrant Certificate For the purposes of this subsection, "Market Value" shall then be disposed an amount equal to the average closing bid price of by or at a share of Common Stock for the direction ten (10) days preceding the Company's receipt of the Company in accordance with applicable law. The Warrant Agent shall (x) advise an authorized representative Notice of the Company as directed Exercise Form duly executed multiplied 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 to be 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 surrender of this Warrant Agreement and any notices given or received hereunderCertificate.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (World Shopping Network Inc/Nv)
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 on or in part, at any time and from time to time, beginning on after the date of original issuance of the Warrant pursuant to the terms of this Warrant Agreement and ending at Separation Date until 5:00 p.m., New York, New York City timetime on January 1, on the date that is the seven year anniversary of the Effective Date 2007 (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 and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company shall promptly provide the ; provided, however, that no 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 holder 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”) entitled to exercise the Warrant to the Company and the Warrant Agent such holder's Warrants at the addresses set forth in Section 23 no later than 5:00 p.m.any time unless, 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 (i) a registration statement under the Securities Act of Common Stock will be issuable via 1933, as amended (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 "Securities Act"), relating to the Warrant AgentShares has been filed with, and declared effective by, the Securities and Exchange Commission (the "SEC"), and no stop order suspending the effectiveness of such registration statement has been issued by the SEC or (ii) 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 issuance of the number of shares of Common Stock to be issued on such exercise, Warrant Shares is permitted pursuant to this Section 9(b), is accurate or correct, nor shall an exemption from 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 registration requirements 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 Securities Act. Each Warrant, when exercised, will entitle the holder thereof to purchase one share 1.936 fully paid and nonassessable shares of Common Stock at the Exercise Price then in effect for such share of Common StockPrice. Each Any 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.such time. No adjustments as to dividends will be made upon exercise of the Warrants. The Warrants may be exercised by surrendering to the Warrant Agent the Warrant Certificates evidencing the Warrants to be exercised with the accompanying form of election to purchase properly completed and executed, New York City time, on together with payment of the Expiration Date.
(d) Unless exercised pursuant to a Cashless Exercise, Exercise Price. Payment of the Exercise Price shall may be payable made (A) by tendering shares of Preferred Stock having an aggregate Liquidation Preference (as defined in the Certificate of Designation), plus, without duplication, accumulated and unpaid dividends, if any, at the time of tender equal to the Company Exercise Price, (B) by tendering Exchange Notes having an aggregate principal amount, plus accrued and unpaid interest, if any, at the time of tender equal to the Exercise Price, (C) by tendering Warrants having a fair market value equal to the Exercise Price, (D) in lawful money the form of the United States of America either cash or by certified or official bank or bank cashier’s check made payable to the order of the Company or (E) by any combination of shares of Preferred Stock, Warrants and cash or if agreed to in Exchange Notes, Warrants and cash. For purposes of clause (C) above, the sole and absolute discretion fair market value of the CompanyWarrants shall be determined as follows: (A) if the Common Stock is publicly traded and listed on the Nasdaq National Market or a national securities exchange, the fair market value shall be equal to the number of shares represented by wire transfer such Warrant multiplied by the greater of (1) the difference between (a) the average closing price as quoted on the Nasdaq National Market of the Common Stock for each of the ten trading days immediately prior to the exercise date (or, if the Common Stock is listed on a national securities exchange, the average closing price as reported on such national securities exchange during such ten trading day period) and (b) the Exercise Price, and (2) zero; or (B) if the Common Stock is not publicly traded, or otherwise is not listed on a national securities exchange, the fair market value of the Warrants shall be equal to the value per share as determined in immediately available funds to an account arranged with good faith by the Board of Directors of the Company prior to exercise(the "Board of Directors").
(e) Any exercise of . In the event that Warrants, Preferred Stock or Exchange Notes are surrendered by a Warrant pursuant holder in payment of the Exercise Price, the Warrant Agent shall notify the Company of such, which notice shall also include the amount of the Exercise Price and the amount of cash, if any, received by the Warrant Agent as partial payment of the Exercise Price. Within a reasonable time of receiving such notice, the Company shall advise the Warrant Agent whether the Warrant Agent has received payment in full of the Exercise Price. In addition, the Warrant Agent shall provide such Preferred Stock to the terms Transfer Agent and such Exchange Notes to the Exchange Note Trustee, who shall notify the Warrant Agent whether such Preferred Stock or Exchange Notes, as applicable, are in good form. After receiving a determination from the Company that the Warrant Agent has received full and proper payment of this the Exercise Price and confirmation from the Transfer Agent and the Exchange Note Trustee that such Preferred Stock or Exchange Notes, as applicable, are in good form, the Warrant Agreement Agent shall deliver the shares of Preferred Stock to the Transfer Agent and the Exchange Notes to the Exchange Note Trustee for cancellation. Subject to the provisions of Section 10 hereof, upon such surrender of Warrants and payment of the Exercise Price, the Company shall issue and cause to be irrevocable and shall constitute a binding agreement between delivered with all reasonable dispatch to or upon the written order of 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 such name or on behalf of holders names 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 Companyholder may designate, no later than two business days after receipt of a Warrant Exercise Notice, of (x) the receipt of such Warrant Exercise Notice and certificate or certificates for the number of full Warrant Shares issuable upon the exercise of such Warrants exercised together with cash, if any, as provided in accordance with Section 16 hereof; provided, however, that if any consolidation, merger or lease or sale of assets is proposed to be effected by the terms and conditions Company as described in subsection (o) of this Warrant AgreementSection 14 hereof, (y) the instructions with respect to delivery of the or a tender offer or an exchange offer for shares of Common Stock of the Company deliverable shall be made, upon such exercise, subject to the timely receipt from the Depository surrender of the necessary information, Warrants 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.
Price as aforesaid, the Successor Guarantor (g) All questions as to the validityhereinafter defined), 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 finalapplicable, non-appealable judgment of a court of competent jurisdiction)shall, 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 possible, but in any event not later than 10 two business days thereafter), issue and cause to be delivered 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 full number of Warrant Shares to which issuable upon the exercise of such holder is entitledWarrants in the manner described in this sentence together with cash, if any, as provided in fully registered form, registered in such name or names as may be directed by such holderSection 16 hereof. Such Warrant Shares 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 Warrant Shares as of the close of business on the date of the delivery surrender of such Warrants and payment of the Exercise Price. No fractional shares shall be issued upon exercise of any Warrants in accordance with Section 16 hereof. The Company will pay to the holder of the Warrant at the time of exercise an amount in cash equal to the current market value of any such fractional share of Common Stock less a corresponding fraction of the Exercise Price. The Warrants shall be exercisable, at the election of the holders thereof. If , either in full or from time to time in part (in whole shares) and, in the event that a certificate evidencing Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time prior to the Expiration Date, a new certificate evidencing the remaining Warrant or Warrants will be issued, and the Warrant Agent shall cause a notation is hereby irrevocably authorized to be made countersign and to deliver the required new Warrant Certificate or Certificates pursuant to the records maintained provisions of this Section and of Section 4 of this Agreement, and the Company, whenever required by the DepositoryWarrant Agent, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellon, as custodian for the Depository, will supply the Warrant Agent will cause with Warrant Certificates duly executed on behalf of the Company for such custodian to make an appropriate notation on the Global purpose. All 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) Certificates surrendered 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 Certificates shall be held by the Warrant Agent until termination of its duties hereunder, at which time it shall deliver such cancelled Warrants to any successor Warrant Agent, if applicable, otherwise to the Company. Upon receipt by the Company, such cancelled Warrant Certificates 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 account promptly to the Company as directed by the Company by the end of each day or on the next business day following each day on which with respect to 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company all funds monies or surrender to the Transfer Agent all shares of Preferred Stock or to the Exchange Note Trustee all Exchange Notes received by the Warrant Agent in payment for the purchase of the aggregate Exercise PriceWarrant Shares through the exercise of such Warrants. 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 hereunderhereunder available for inspection by the holders during normal business hours at its office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may request.
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, each Warrant holder 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 upon payment of the Warrant pursuant to Exercise Price in accordance with the terms of this Warrant Agreement Agreement, from and ending at after the date of issuance of such Warrants until 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 Warrant Agent on behalf of the Company the number of fully paid and nonassessable Warrant Shares which the holder 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 Warrants. Each Warrant Shares. The Company shall promptly provide the Warrant Agent with written notice of the Expiration Date. After not exercised on or before 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 such time, on the Expiration Date.
(db) Unless The Warrants may be exercised pursuant during normal business hours on any Business Day on or prior to a Cashless Exercisethe Expiration Date upon surrender to the Warrant Agent on behalf of the Company at the principal office of the Warrant Agent of the certificate or certificates evidencing the Warrants to be exercised with the form of subscription to purchase on the reverse thereof duly completed and signed, and upon payment to the Warrant Agent for the account of the Company of the Exercise Price as adjusted as herein provided, for each of the Warrant Shares in respect of which such Warrants are then exercised. Payment of the aggregate Exercise Price for the number of Warrant Shares specified in the subscription form shall be made by wire transfer or by certified or official bank check payable to the order of the Company in immediately available funds in lawful money of the United States of America either by certified America.
(c) Upon surrender of Warrants in accordance with this Section 7, and payment of the Exercise Price as provided above, the Warrant Agent shall thereupon promptly notify the Company, and the Warrant Agent shall deliver or official bank cause to be delivered, as promptly as possible thereafter, but in any event within three (3) Business Days of receipt of such surrender and payment, to the Holder of such Warrant Certificate appropriate evidence of ownership of any Warrant Shares or bank cashier’s check made other securities or property (including any money) to which the Holder is entitled, and, to the extent possible, certificates representing the Warrant Shares or such other securities shall be in such denomination(s) as such Holder shall request, and registered or otherwise placed in, or payable to the order of the Company (or if agreed to in the sole and absolute discretion of the Companyof, 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 in writing by the Holder, and shall deliver or cause to be delivered such holderevidence of ownership and any other securities or property (including any money) to the person or persons entitled to receive the same, together with an amount in cash in lieu of any fraction of a share as provided in Section 13 hereof. Such Warrant Shares Any such evidence of ownership shall be deemed to have been issued and any person 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 surrender of such Warrants and payment of the Exercise Price, notwithstanding that the stock transfer books of the Company shall then be closed or that certificates representing such shares shall not then be actually delivered to the Holder.
(d) The Warrants shall be exercisable either in full or from time to time in part and, in the event that a Warrant Certificate is surrendered to the Warrant Agent for exercise of fewer than all of the Warrants evidenced represented by a Global such Warrant Certificate surrendered upon the exercise of Warrants are exercised at any time prior to the Expiration Date, a new certificate evidencing the remaining Warrant or Warrants but otherwise identical to the surrendered Warrant Certificate will be issued by the Company, and the Warrant Agent shall cause a notation is hereby irrevocably authorized to be made countersign and to deliver the required new Warrant Certificate pursuant to the records maintained provisions of this Section 7 and of Section 4 hereof as promptly as possible, but in any event within three (3) Business Days of receipt of the certificate evidencing the Warrants, and the Company, whenever required by the DepositoryWarrant Agent, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellon, as custodian for the Depository, will supply the Warrant Agent will cause with Warrant Certificates duly executed on behalf of the Company for such custodian to make an appropriate notation on the Global purpose.
(e) All 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) Certificates surrendered upon exercise of a Warrant Warrants 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 canceled by the Warrant Agent. Such cancelled Global canceled Warrant Certificate Certificates shall then be disposed of by or at the direction of Warrant Agent in a manner satisfactory to the Company in accordance with applicable lawCompany. The Warrant Agent shall (x) advise an authorized representative of account promptly to the Company as directed by the Company by the end of each day or on the next business day following each day on which with respect to such 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company as promptly as practicable, but in any event within five (5) Business Days of receipt, all funds monies received by the Warrant Agent in payment for the purchase of the aggregate Exercise Price. The Warrant Agent shall confirm Shares through the exercise of such information to the Company in writing as promptly as practicableWarrants.
(kf) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunderhereunder by or from the Company available for inspection by the Holders during normal business hours at its office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may reasonably request.
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, each Warrant holder Holder shall have the right, which may be exercised in whole commencing on or in part, at any time and from time to time, beginning on after the original date of original issuance issue of the Warrant pursuant to Warrants (the terms of this Warrant Agreement "Issue Date") and ending at until 5:00 p.m., New York City time, on the date that is the seven year anniversary of the Effective Date June 30, 2007 (the “"Expiration Date”"), to exercise each Warrant and receive from the Company the number of fully paid and nonassessable Warrant Shares which that the holder Holder may at the time be entitled to receive on exercise of such Warrants upon and payment of the aggregate Exercise Price (as defined below) 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 next paragraph 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 hereofSection, 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 and otherwise shall cease as of 5:00 p.m.such time. No adjustments as to dividends will be made upon exercise of the Warrants. The initial price per share at which Warrant Shares shall be purchasable upon exercise of Warrants (the "Exercise Price") shall be $.
01. The number of Warrant Shares for which a Warrant may be exercised is subject to adjustment as provided in Section 12 hereof. A Warrant may be exercised upon surrender at the office or agency of the Company maintained for such purpose, which initially will be the corporate trust office of the Warrant Agent in New York, New York City timeYork, of the certificate or certificates evidencing the Warrants to be exercised with the form of election to purchase on the Expiration Date.
reverse thereof duly filled in and signed, which signature shall be guaranteed by a participant in a recognized Signature Guarantee Medallion Program, and upon payment to the Warrant Agent for the account of the Company of the Exercise Price, as adjusted as herein provided, for the number of Warrant Shares in respect of which such Warrants are then exercised. Payment of the Exercise Price may be made, in the sole discretion of the Holder, in the form of any of the following: (a) cash or a check or bank draft in New York Clearing House funds, (b) by the surrender to the Company for cancellation of a portion of the Warrants held by a Holder representing that number of unissued Warrant Shares having a Current Market Value equal to the aggregate Exercise Price of the Warrant Shares being obtained or (c) by the surrender of the applicable Warrant and without the payment of the Exercise Price in cash, for such number of Warrant Shares equal to the product of (1) the number of Warrant Shares for which such Warrants are exercisable with payment in cash of the Exercise Price as of the date of exercise and (2) the Cashless Exercise Ratio or (d) Unless by any combination of (a), (b) and (c) above. For purposes of this Agreement, the "Cashless Exercise Ratio" shall equal a fraction, the numerator of which is the excess of the Current Market Value of the Common Stock on the date of exercise over the Exercise Price Per Share as of the date of exercise and the denominator of which is the Current Market Value of the Common Stock on the date of exercise. An exercise of a Warrant in accordance with the immediately preceding sentences through the surrender of Warrants and not with cash is herein called a "Cashless Exercise." Upon surrender of a Warrant Certificate representing more than one Warrant in connection with the Holder's option to elect a Cashless Exercise, the number of Warrant Shares deliverable upon a Cashless Exercise shall be equal to the number of Warrants that the holder specifies is to be exercised pursuant to a Cashless Exercise, Exercise multiplied by the Cashless Exercise Price Ratio. All provisions of this Agreement 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 applicable with respect to an account arranged with the Company prior to exercise).
(e) Any exercise of a Warrant Certificate pursuant to a Cashless Exercise for less than 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 full number of Warrants to represented thereby. "Exercise Price Per Share" means 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 Price divided by the number of Warrant Shares for which a Warrant is then exercisable (without giving effect to the Cashless Exercise option). Subject to the provisions of Section 6 hereof, upon such surrender of Warrants exercised in accordance with the terms and conditions of this Warrant Agreement, (y) the instructions with respect to delivery payment of the Exercise Price, the Company shall issue and cause to be delivered with all reasonable dispatch to or upon the written order of the Holder and in such name or names as the Warrant Holder may designate a certificate or certificates for the number of full Warrant Shares issuable upon the exercise of such Warrants together with cash as provided in Section 13; provided, however, that if any consolidation, merger or lease or sale of assets and subsequent liquidation of the Company is proposed to be effected by the Company as described in subsection (k) of Section 12 hereof, or a tender offer or an exchange offer for shares of Common Stock of the Company deliverable shall have been made and not terminated, upon such exercise, subject to the timely receipt from the Depository surrender of the necessary information, Warrants 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 Price 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. Moreoveraforesaid, 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 Warrantsshall, nor shall it incur any liability for the failure to give such notice.
(h) As as soon as reasonably practicable after the exercise of any Warrant (and possible, but in any event not later than 10 business days thereafter)three days, the Company shall issue, other than a Saturday or otherwise deliver, in authorized denominations to Sunday 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-a day or next-day credit to the Depository for the account of such holder or for the account of a participant on which banking institutions in the Depository State of New York are not open for business ("Business Day") thereafter, issue and cause to be delivered 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 full number of Warrant Shares to which issuable upon the exercise of such holder is entitled, Warrants in fully registered form, registered the manner described in such name or names this sentence together with cash as may be directed by such holderprovided in Section 13. Such Warrant Shares 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 Warrant Shares as of the close of business on the date of the delivery surrender of such Warrants and payment of the Exercise Price. The Warrants shall be exercisable, at the election of the Holders thereof. If , either in full or from time to time in part and, in the event that a certificate evidencing Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time prior to the Expiration Datedate of expiration of the Warrants, a new certificate evidencing the remaining Warrant or Warrants will be issued, and the Warrant Agent shall cause a notation is hereby irrevocably authorized to be made countersign and to deliver the required new Warrant Certificate or Certificates pursuant to the records maintained provisions of this Section 7 and of Section 3 hereof, and the Company, whenever required by the DepositoryWarrant Agent, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellon, as custodian for the Depository, will promptly supply the Warrant Agent will cause with Warrant Certificates duly executed on behalf of the Company for such custodian to make an appropriate notation on the Global purpose. All 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) Certificates surrendered 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 Certificates shall then be disposed of by or at the direction of Warrant Agent in a manner consistent with the Company Warrant Agent's customary procedure for such disposal and in accordance with applicable lawa manner reasonably satisfactory to the Company. The Warrant Agent shall (x) advise an authorized representative of account promptly to the Company as directed by the Company by the end of each day or on the next business day following each day on which with respect to 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company all funds monies received by the Warrant Agent in payment for the purchase of the aggregate Exercise PriceWarrant Shares through the exercise of such Warrants. 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 Agreement available for inspection by the Holders during normal business hours at its office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement and any notices given or received hereunderas the Warrant Agent may request.
Appears in 1 contract
Sources: Warrant Agreement (Hvide Marine Inc)
Terms of Warrants; Exercise of Warrants. (a) Subject Each Warrant not exercised prior 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 February 28, 2008 (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 such time.
(b) Subject to the terms of this Agreement, each Warrant shall be exercisable, in full and not in part, at the election of the Holder thereof, during the period commencing at the opening of business on the Issue Date and until 5:00 p.m., New York City time, time on the Expiration Date.
, and shall entitle the Holder thereof to receive from the Company one (d1) Unless exercised pursuant to a Cashless Exercise, fully paid and nonassessable share of Common Stock upon exercise of such Warrant and payment of the Exercise Price shall be payable to the Company then in lawful money of the United States of America either effect in cash, by wire transfer or by certified or official bank or bank cashier’s check made payable to the order of the Company.
(c) In order to exercise all or any of the Warrants, the Holder thereof must deliver to the Warrant Agent at the Corporate Trust Office (i) the Warrant Certificates evidencing such Warrants, (ii) the form of election to purchase on the reverse thereof duly filled in and signed, which signature shall be medallion guaranteed by an institution which is a member of a Securities Transfer Association recognized signature guarantee program, and (iii) payment to the Warrant Agent for the account of the Company (or if agreed to of the then-current Exercise Price, in the sole and absolute discretion manner set forth in Section 4.01(b) for the number of Warrant Shares in respect of which the CompanyWarrants are being exercised.
(d) No fractional Warrant Shares are to be issued upon any exercise of a Warrant, by wire transfer but rather cash in immediately available funds lieu of fractional shares shall be delivered to an account arranged with the Company prior to exercise)Holder as provided in Section 6.02.
(e) Any exercise of If fewer than all the Warrants represented by 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 faceCertificate are exercised, such Warrant Exercise Notices Certificate shall be surrendered and any such other documents have been a new Warrant Certificate for the number of Warrants which were not exercised shall be executed and completed in accordance with their terms;
(ii) inform by 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 delivered 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 countersign 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 new 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 formCertificate, registered in such name or names as may be directed in writing by such holder. Such Warrant Shares the Holder, and 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 deliver the close of business on the date of the delivery thereof. If fewer than all of the Warrants evidenced by a Global new Warrant Certificate to the Person or Persons entitled to receive the same.
(f) All Warrant Certificates 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 Certificates shall then be disposed of by or at the direction of Warrant Agent in a manner satisfactory to the Company in accordance with applicable lawCompany. The Warrant Agent shall (x) advise an authorized representative of account promptly to the Company as directed by the Company by the end of each day or on the next business day following each day on which with respect to 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company all funds monies received by the Warrant Agent in payment for the purchase of the aggregate Exercise Price. The Warrant Agent shall confirm Shares through the exercise of such information to the Company in writing as promptly as practicableWarrants.
(kg) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunderhereunder available for inspection by the Holders during normal business hours at the Corporate Trust Office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may reasonably request.
Appears in 1 contract
Sources: Warrant Agreement (WHX Corp)
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, including Section 14(d) hereof, 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 November 30, 2014 (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 and 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 Any shares of Common Stock issued upon the exercise of any Warrants shall be shares of Class A Common Stock, unless such exercising holder elects in writing at the time it delivers the Warrant Exercise Notice (as defined below) to the Warrant Agent to receive shares of Class B Common Stock. In addition, 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 24 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 hereto, properly completed and executed by the holder provided that such written notice may only be submitted by persons who hold Book-Entry Warrants, or (y) in Exhibit B hereto, properly completed and executed by the holder, or (y) in Exhibit B hereto for holders who hold interest in provided that such written notice may only be submitted with respect to Warrants held 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 governmental 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 preceding 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 = P where: N = the number of shares of Common Stock to be subtracted from the aggregate remaining 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 exerciseforegoing calculation results in a negative number, 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 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) where a Warrant Exercise Notice or other document appears on its face to have been improperly completed or executed or some other irregularity in connection with the exercise of the Warrant exists, the Warrant Agent shall endeavor to inform the appropriate parties (including the person submitting such instrument) of the need for fulfillment of all requirements, specifying those requirements which appear to be unfulfilled;
(iii) 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;
(iiiiv) advise the Company, no later than two three 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;
(ivv) 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
(vvi) 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)faith, 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 less 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, a new Global Warrant Certificate or Certificates shall be issued for the Warrant Agent shall cause a notation to be made to the records maintained remaining number of Warrants evidenced by the Depository, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellonso surrendered, as custodian for the Depository, and the Warrant Agent will cause such custodian is hereby authorized to make an appropriate notation on countersign the required new Global Warrant Certificate or Certificates pursuant to reflect such reduction in Warrants represented by the Global Warrant Certificateprovisions of Section 6 hereof and this Section 9. 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 All Global Warrant Certificate have been exercised, such Global Warrant Certificate Certificates surrendered upon exercise of Warrants shall be cancelled by the Warrant Agent. Such cancelled Global Warrant Certificate Certificates 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 delivery of the Depository reflecting Global Warrant Certificates evidencing 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 promptly shall confirm such information to the Company in writing as promptly as practicablewriting.
(k) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunder.
Appears in 1 contract
Sources: Warrant Agreement (SemGroup Corp)
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 prior to 5:00 p.m., p.m. New York City timeTime, on the date that is the seven year anniversary of the Effective Date May 15, 2015 (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 and 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.In addition, New York City time, on the Expiration Date, the Warrants will become wholly void and of no value. Prior prior to the delivery of any shares of New 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 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., p.m. New York City time, on the Expiration Date, which Warrant Exercise Notice shall substantially be substantially in the form of an election to purchase Warrant Shares set forth either (x) in Exhibit A hereto for holders who hold Book-Entry Warrantsherein, 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 DepositoryHolder;
(ii) delivering no later than 5:00 p.m., p.m. New York City time, on the business day immediately prior to the Settlement Date, this Warrant Certificate evidencing 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 CertificateCompany; 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 caseAmount, together with any applicable taxes and governmental 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 The Holder shall have the right, in lieu of paying the Exercise Price Amount in cash, to instruct the Company to reduce the number of shares of New Common Stock issuable issued purchased pursuant to the exercise of the Warrants (the “Cashless Exercise”) in accordance with the following formula: N = where: N = the number of shares of New Common Stock to be subtracted from the aggregate remaining number of shares of New Common Stock issuable upon exercise of the Warrants; P = the aggregate Exercise Price Amount which would otherwise be payable in cash for all of the shares of New 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 date 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.
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms contained herein, the holder of this Warrant Agreement, each Warrant holder Certificate 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 time until 5:00 p.m., New York City Los Angeles time, on the date that is the seven year anniversary of the Effective Date (the “Expiration Date”)September 30, 2000, to exercise each Warrant purchase and receive from the Company the number of validly issued, fully paid and nonassessable non-assessable Warrant Shares which the holder may at the time be entitled to receive on exercise of such the Warrants upon represented by this Warrant Certificate and payment of the aggregate applicable 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 5:00 p.m., Los Angeles time, on September 30, 2000 shall become void void, and all rights thereunder hereunder and all rights in respect thereof under this Warrant Agreement hereunder shall cease as of 5:00 p.m., New York City such time, on the Expiration Date.
(d) Unless A Warrant may be exercised pursuant upon surrender to a Cashless Exercisethe Company at its principal office of this Warrant Certificate with the form of election to purchase attached hereto duly completed and signed, and upon payment to the Company for the account of the Company of the applicable Exercise Price, as adjusted as herein provided, for the number of Warrant Shares in respect of which such Warrants are then exercised. Payment of the aggregate Exercise Price shall be payable to the Company made in lawful money of the United States of America either cash, 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 . Upon such surrender of this Warrant Agreement shall be irrevocable Certificate 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 applicable 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 issue and cause to or upon the order of be delivered with all reasonable dispatch to 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 this Warrant Certificate a certificate or next-day credit to the Depository certificates for the account of such holder or for the account of a participant in the Depository the number of shares full Warrant Shares issuable upon the exercise 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 together with cash as provided 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 Section 6. Such certificate or certificates representing for 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, subject to applicable federal and state securities laws and regulations, 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 surrender of this Warrant Certificate and payment 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 Certificateapplicable Exercise Price. The Person in whose name any Such certificate or certificates for the Warrant Shares are may, if required, bear the legend set forth in Section 1. The Warrants shall be exercisable, at the election of the holder of this Warrant Certificate, either in full or from time to be issued (or such Warrant Shares are to be registeredtime in part and, in the case event that a certificate evidencing Warrants is exercised in respect 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 fewer than all of the Warrants evidenced by a Global Warrant Certificate have been exercised, Shares issuable on such Global Warrant Certificate shall be cancelled by exercise at any time prior to the Warrant Agent. Such cancelled Global Warrant Certificate shall then be disposed date of by or at the direction expiration of the Company in accordance with applicable law. The Warrants, a new certificate evidencing the remaining 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 practicablewill be issued.
(k) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunder.
Appears in 1 contract
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 at any time, and from time to time, in whole or in part, at any time and from time to time, beginning during the period commencing on the date of original issuance of the Warrant Certificates pursuant to the terms of this Warrant Agreement and ending at 5:00 p.m., p.m. New York City time, on the date that is the seven year anniversary of the Effective Date October 1, 2020 (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 and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company shall shall, promptly after the Expiration Date, provide the Warrant Agent with written notice of the Expiration Date. After 5:00 p.m.In addition, New York City time, on the Expiration Date, the Warrants will become wholly void and of no value. Prior prior to the delivery of any shares of Common Stock Warrant Shares 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 hereof12, 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.
(dc) 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 Subject to the terms of this Warrant Agreement shall be irrevocable and shall constitute a binding agreement between conditions set forth herein, the holder and of Warrants may, until 5:00 p.m. New York City time, on the CompanyExpiration Date, enforceable exercise, in accordance with its terms.
(f) The whole or in part, at any time or from time to time, such holder’s right to purchase Warrant Agent shallShares by:
(i) examine all providing written notice of such election (a “Warrant Exercise Notices Notice”) to exercise the Warrants to the Company and all other documents delivered Warrant Agent at the Warrant Agent Office, by overnight courier no later than 5:00 p.m. New York City time, on the Expiration Date, which Warrant Exercise Notice shall be in the form of an election to it purchase Warrant Shares substantially in the form set forth either (x) in Exhibit B-1 hereto, properly completed and duly executed by the holder, provided that such written notice may only be submitted by a holder with respect to Book-Entry Warrants; or (y) in Exhibit B-2 hereto, properly completed and duly executed by the holder, provided that such written notice may only be submitted with respect to Warrants held through the book-entry facilities of the Depositary, 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 through persons that are direct participants in accordance with their termsthe Depositary;
(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, delivering no later than two 5:00 p.m., New York City time, on the 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 day immediately prior to the timely receipt from the Depository of the necessary informationapplicable Settlement Date (as defined below), and (z) such other information as the Company shall reasonably require;
(iv) subject to the Common Stock being made available Warrants to the Warrant Agent by or on behalf book-entry transfer through the facilities of the Company for delivery to the Depository, liaise with the Depository and endeavor to effect if such delivery to the relevant accounts at the Depository in accordance with its requirementsWarrants are represented by a Global Warrant Certificate; and
(viii) pay subject to Section 8(h) below, paying the Company all funds received by the Warrant Agent in payment of the applicable 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 Price 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 AgentExercise Amount”) 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 together with all applicable taxes 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 Certificatecharges. 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 date three business days after 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 delivereddelivered is referred to for all purposes under this Warrant Agreement as the “Settlement Date”.
(id) 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 For purposes of this Warrant Agreement and any notices given or received hereunder.Section 8, the following terms shall have the meanings set forth below:
Appears in 1 contract
Sources: Warrant Agreement (Visteon Corp)
Terms of Warrants; Exercise of Warrants. (a) Subject No Warrants of any series shall be exercisable unless notice is given to the terms holders thereof, by the Company at the Company's sole discretion, that Warrants of such series may be exercised (the date of such notice being referred to as the "Trigger Date"). Such notice (the "Trigger Notice") shall be given by the Company as provided in Section 12 of this Agreement, shall be accompanied or preceded by a prospectus covering the registration of the Warrant AgreementShares under the Securities Act of 1933, as amended, and shall include (i) the number of Warrant Shares issuable upon exercise of each Warrant of such series, (ii) the price to be paid for each Warrant Share issuable upon exercise of Warrants of such series (the "Exercise Price"), (iii) the expiration date for Warrants of such series (which shall be selected by the Company in its sole discretion, but which shall be a date no less than 14 Business Days after the date of mailing of such Trigger Notice)(the "Expiration Date") and (iv) such other terms and conditions as the Company in its sole discretion may impose. No Trigger Notice may be given by the Company and no Warrants will be exercisable by holders unless the Warrant Shares are registered under the Securities Act of 1933, as amended. From and after the giving of the Trigger Notice with respect to a series of Warrants until the close of business on the Expiration Date set forth therein, 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 subject 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”)Agreement, to exercise each Warrant the Warrants of that series as of a specified date (the "Effective Date") and receive from the Company the number of fully paid and nonassessable Warrant Shares (together with any Warrants of an Unexpired Series that are issuable in respect of such Warrant Shares) which the holder may at the time be entitled to receive on exercise of such Warrants upon and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company shall promptly provide Exercise Price for each series of Warrants is anticipated to be based on a discount from the Warrant Agent with written notice market price 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 Trigger Date with respect to Warrants to the of that series. Each 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 series not 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 that series 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.such time. However, New York City timeany such non-exercise of a Warrant of a particular series shall not have any effect on a Warrant of any Unexpired Series. Save as expressly provided otherwise in this Agreement, on no adjustments as to dividends will be made upon exercise of the Expiration Date.
Warrants. A Warrant may be exercised upon surrender to the Company at the principal corporate trust office of the Warrant Agent referred to in Section 12 (dthe "Warrant Agent Office") Unless of a form of election to exercise duly filled in and signed, which signature shall be guaranteed by an "eligible guarantor" as defined in the regulations promulgated under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), together with the shares of Common Stock evidencing the Warrants to be exercised pursuant (the "Tendered Shares") and upon payment to a Cashless Exercise, the Warrant Agent for the account of the Company of the Exercise Price for each Warrant Share then exercised. Payment of the aggregate Exercise Price shall be payable to the Company made (i) in lawful money of the United States of America either dollars or (ii) by certified or official bank or bank cashier’s check made payable to the order of the Company (or if agreed to in Warrant Agent. The Exercise Price for all Warrants which have been exercised and 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 related Tendered Shares shall be irrevocable and shall constitute held in escrow in a binding agreement between separate account by the holder and Warrant Agent. Not later than the Company[______] Business Day following the Expiration Date, enforceable in accordance with its terms.
(f) The 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) shall 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 shall issue a Warrant Exercise Notice, of (x) the receipt of such Warrant Exercise Notice and press release indicating the number of Warrants which have been 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 be outstanding after giving effect to such account exercises. The Company will request each of its shareholders to provide the Company written notice by the close of business on the [______] Business Day thereafter if, as directed a result of such exercises, there would be a risk that they would become a "5% Stockholder," as such term is defined in Article Fifth of the Company's Certificate of Incorporation. If any person would be at risk of becoming a 5% Stockholder as a result of such person's exercise of Warrants, the number of Warrants exercised by such person may, at the sole discretion of the Company and its tax counsel, be automatically, and without any further action by such person, reduced to the number of Warrants which would cause such person's ownership of Common Stock to be less than 5% or such number in excess of 5% as the Company and its tax counsel shall determine in their sole discretion. The Company will notify the Warrant Exercise Notice Agent of the number of Warrants deemed exercised by each such person. In addition, notwithstanding the other provisions of this Agreement and the Warrants, the Company may limit the exercise of Warrants by pre-existing 5% Stockholders and shall give notice to such holders of such limitation no later than [______] and any Warrants held by such holder or by person will be subject to such limitations. The Warrant Agent shall hold all Tendered Shares until after the direct participant in Expiration Date. No sooner than the Depository through which close of business on the [______] Business Day following the Expiration Date, the Warrant Agent shall promptly return certificates representing the Tendered Shares (and related Unexpired Warrants) to the holders of those shares, pursuant to the written instruction of such holder is acting; or
(ii) if such holder holds holders. Not later than the Warrants being exercised in close of business on the form [______] Business Day following the Expiration Date, the Company shall give notice to the Warrant Agent of Book-Entry Warrants, a book-entry interest in the shares of Common Stock registered on the books (and related Unexpired Warrants) to be issued upon exercise 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 CompanyWarrants, the “Transfer Agent”) or, at the Company’s option, by delivery Exercise Price for such Warrants shall be delivered to the address designated by Company and the Company shall issue and cause to be delivered with all reasonable dispatch to the Warrant holder, pursuant to the written instruction of such holder in its Warrant Exercise Notice of holder, a physical certificate or certificates representing for the number of full Warrant Shares to which (and related Unexpired Warrants) issuable upon the exercise of such holder is entitled, Warrants together with cash as provided in fully registered form, registered in such name or names as may be directed by such holderSection 8 hereof. Such Warrant Shares certificate or certificates shall be deemed to have been issued and any person so designated to be named therein the holder thereof shall be deemed to have become a holder of record of such Warrant Shares (and related Unexpired Warrants) 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 Effective 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 promptly return to the holders the Exercise Price (xwithout interest) advise an authorized representative for any Warrants which the Company shall have determined may not be exercised, as provided above. In addition, if the Board of Directors of the Company as directed by determines at any time that the Company by the end exercise of each day Warrants of any series will cause an unreasonable risk of an "ownership change" or an unintentional result on the next business day following each day on "ownership change percentage," the Board of Directors may terminate such Warrants, even if a Trigger Notice has been given with respect to such Warrants or if the Effective Date or Expiration Date for such series has occurred, and the Exercise Price for any Warrants of such series 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 have been received by the Warrant Agent in payment shall be promptly returned to the holders of the aggregate Exercise Pricesuch Warrants, without interest. The Warrant Agent holders of any Warrants shall confirm such information be free to exercise all or any portion of their Warrants. Failure to exercise Warrants of one series shall not affect the Company in writing as promptly as practicable.
(k) Warrants of any unexpired series. The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunderhereunder available for inspection by the holders of the Warrants during normal business hours at its office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may request.
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. (a) The Notes and Warrants will be separately transferable from and after the Issue Date. 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 during the period commencing at the opening of business on the date Issue Date until the close 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, business on the date that is the seven year [seventh anniversary of the Effective Date Issue Date] (the “Expiration Date”"Exercise Period"), to exercise each Warrant and receive from the Company the number of Warrant Shares, representing fully paid and nonassessable Warrant Shares Series A Shares, which the holder may at the time be entitled to receive on exercise of such Warrants upon and payment of the Exercise Price. The Exercise Price shall be payable solely by tendering Notes having a principal amount at least equal to the Exercise Price. In the event Notes are tendered having a principal amount in excess 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 DateWarrants exercised, the Warrants will become wholly void tendering Warrant holder shall be deemed to forfeit such excess and of no value. Prior to the delivery of any shares of Common Stock that neither the Company shall be obligated to deliver upon proper exercise of nor 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 any obligation to investigate or confirm whether the Company’s determination of the number of shares of Common Stock to be issued on compensate 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 Stockholder. Each Warrant not exercised pursuant to this Warrant Agreement prior to the close of business on [March , 2010] (the "Expiration Date Date") shall become void and all rights thereunder and all rights in respect thereof under this agreement shall cease as of such time. Notwithstanding the foregoing, if all Notes have been mandatorily redeemed pursuant to Section [ ] of the Indenture or if all of the Notes shall have been repurchased pursuant to Section [ ] or [ ] of the Indenture (the "Redemption Date"), each Warrant shall become void and all rights thereunder and all rights in respect thereof under this Agreement shall cease as of 5:00 p.m., New York City time, on the Expiration Redemption Date.
(db) Unless exercised pursuant In order to exercise all or any of the Warrants represented by a Cashless ExerciseWarrant Certificate, 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 thereof must deliver to the Warrant Agent at its corporate trust office set forth in Section 15 hereof the Warrant Certificate and the form of election to purchase on the reverse thereof duly filled in and signed, which signature shall be medallion guaranteed by or on behalf an institution which is a member of the Company for delivery a Securities Transfer Association recognized signature guarantee program, and upon payment 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 Company of a participant in the Depository the number of shares of Common Stock to Exercise Price, 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 set forth 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 capacityWarrant Certificate attached hereto as Exhibit A, as may from time to time be appointed by the Companyadjusted as herein provided, 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 for the number of Warrant Shares to in respect of which such Warrants are then exercised. Payment of the aggregate Exercise Price shall be made in the manner provided in Section 4(a) hereof.
(c) Subject to the provisions of Section 5 hereof, upon compliance with clause (b) above, the Warrant Agent shall deliver or cause to be delivered with all reasonable dispatch, to or upon the written order of the holder is entitled, in fully registered form, registered and in such name or names as the Warrant holder may be directed by designate, a certificate or certificates for the number of whole Warrant Shares issuable upon the exercise of such holderWarrants or other securities or property to which such holder is entitled hereunder. Such Warrant Shares 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 Warrant Shares as of the close of business on the date of the delivery surrender of such Warrants and payment of the Exercise Price.
(d) The Warrants shall be exercisable, at the election of the holders thereof, either in full or from time to time in part pursuant to the terms of this Section 4. If fewer less than all the Warrants represented by a Warrant Certificate are exercised, such Warrant Certificate shall be surrendered and a new Warrant Certificate of the Warrants evidenced by a Global Warrant Certificate surrendered upon same tenor and for the exercise number of Warrants are which were not exercised at any time prior shall be executed by the Company and delivered to the Expiration Date, Warrant Agent and the Warrant Agent shall cause a notation to countersign the new Warrant Certificate, registered in such name or names as may be made to the records maintained directed in writing by the Depositoryholder, and, to and shall deliver 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 new Warrant Certificate to reflect such reduction in Warrants represented by the Global Person or Persons entitled to receive the same.
(e) All 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) Certificates surrendered 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 Certificates shall then be disposed of by or at the direction of the Company Warrant Agent in accordance with applicable lawits customary manner. The Warrant Agent shall (x) advise an authorized representative of account promptly to the Company as directed by the Company by the end of each day or on the next business day following each day on which with respect to 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company all funds monies received by the Warrant Agent for the purchase of the Warrant Shares through the exercise of such Warrants. All Notes tendered in payment of the aggregate Exercise Price. The Price shall be delivered by the Warrant Agent shall confirm such information to the Trustee and the Company in writing as promptly as practicableshall concurrently deliver to the Trustee an order of cancellation with respect to such Notes.
(kf) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunderhereunder available for inspection by the holders upon reasonable prior written notice during normal business hours at its office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may request.
(g) The holders of the Warrants will have no right to vote on matters submitted to the stockholders of the Company and will have no right to receive dividends. The holders of the warrants will not be entitled to share in the assets of the Company in the event of liquidation, dissolution or the winding up of the Company.
Appears in 1 contract
Sources: Warrant Agreement (TMM Holdings)
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 Certificates pursuant to the terms of this Warrant Agreement and ending at prior to 5:00 p.m., p.m. New York City timeTime, on the date that is the seven year anniversary of the Effective Date December 21, 2006 (the “"Expiration Date”"), to exercise each Warrant and receive from the Company the number of fully paid and nonassessable Warrant Shares shares of the New Common Stock which the holder may at the time be entitled to receive on exercise of such Warrants upon and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company shall promptly provide the Warrant Agent with written notice shares of the Expiration DateNew Common Stock. After 5:00 p.m.In addition, New York City time, on the Expiration Date, the Warrants will become wholly void and of no value. Prior prior to the delivery of any shares of the New 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 Each Warrant, when exercised, will entitle the holder thereof to purchase one share of the New Common Stock at the Exercise Price then in effect for such share of Common StockPrice. 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 such time, on the Expiration Date.
(d) Unless . A Warrant may be exercised pursuant to a Cashless Exercise, the Exercise Price shall be payable upon surrender to the Company at the Warrant Agent Office referred to in lawful money Section 20 (the "Warrant Agent Office") of the Warrant Certificate or Warrant Certificates evidencing the Warrants to be exercised with the form of election to purchase on the reverse thereof (the "Exercise Notice") duly and properly completed and signed, which signature shall be guaranteed by an "Eligible Guarantor Institution" as defined in Rule 17Ad-15(2) promulgated under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), and upon payment to the Warrant Agent for the account of the Company of the exercise price of $34.16 (the "Exercise Price"), as adjusted from time to time as herein provided, for each Warrant Share then exercised. Payment of the aggregate Exercise Price for all shares of the New Common Stock being exercised in respect of a Warrant shall be made (a) in United States of America either Dollars or (b) by certified or official bank or bank cashier’s check for United States Dollars made payable to the order of the Company (or if agreed to in the sole and absolute discretion "RCN Corporation". In lieu of payment of the Companyaggregate Exercise Price as aforesaid and subject to applicable law, by wire transfer in immediately available funds to an account arranged with the Company prior to exercise).
(e) Any exercise holder of a Warrant pursuant may elect to receive from the Company a number of shares of the New Common Stock equal to the terms of this Warrant Agreement shall be irrevocable and shall constitute a binding agreement between "Spread" by indicating such election in 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 Notice 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 holder. The "Spread" shall, subject to Section 14, be paid by the Company by delivering to such Warrant holder a number of and cooperate with and assist shares of the Company in resolving any reconciliation problems between New Common Stock equal to (a)(i) 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, product of (x) the current market price per share of the New Common Stock (as if the date of receipt of such Warrant the Exercise Notice and to the number of Warrants exercised in accordance with the terms and conditions of this Warrant Agreement, Company) multiplied by (y) the instructions with respect to delivery number of shares of the New Common Stock underlying the Warrants being exercised, minus (ii) the product of (x) the Exercise Price, multiplied by (y) the number of shares of the New Common Stock underlying the Warrants being exercised, divided by (b) the current market price per share of the Company deliverable New Common Stock (as of the date of receipt of the Exercise Notice to the Company). Subject to the provisions of Section 8, upon such exercise, subject to the timely receipt from the Depository surrender of the necessary information, Warrants 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 issue and cause to be delivered promptly to or upon the written order of the Warrant 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 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 holder may designate, 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 number of full shares of the case of a book-entry transfer) New Common Stock issuable upon the 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 Warrants together with cash as provided in Section 16 hereof14; provided, no fractional shares of Common Stock shall however, that if any Fundamental Transaction (as defined in Section 12(h)) is proposed to 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 effected 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 there is pending any tender offer or an exchange offer for shares of the New Common Stock issued Stock, upon exercise such surrender 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 Warrants 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 Price as aforesaid, the Company shall, as soon as possible, but in writing as promptly as practicable.
(k) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunder.event
Appears in 1 contract
Sources: Warrant Agreement (RCN Corp /De/)
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, each Warrant holder Holder shall have the right, which may be exercised in whole or in part, commencing at any time and from time to time, beginning the opening of business on the date of original issuance of the Warrant pursuant to the terms of this Warrant Agreement Issue Date and ending at until 5:00 p.m., New York City time, 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 Holder may at the time be entitled to receive on exercise of such Warrants upon and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company shall promptly provide the Each Warrant Agent with written notice of the Expiration Date. After not exercised prior to 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 such time. No payments or adjustments shall be made on account of any dividends on the Warrant Shares issuable upon exercise of the Warrants. The Company shall give notice not less than 90, and not more than 120, days prior to the Expiration Date to the Holders of all then outstanding Warrants to the effect that the Warrants will terminate and become void as of 5:00 p.m., New York City time, on the Expiration Date.
(d) Unless ; PROVIDED, HOWEVER, that the failure by the Company to give such notice as provided in this Section shall not affect such termination and becoming void of the Warrants as of 5:00 p.m., New York City time, on the Expiration Date. A Warrant may be exercised pursuant at any time on or after the Issue Date and prior to the Expiration Date upon surrender to the Company at the principal office of the Warrant Agent of the certificate or certificates evidencing the Warrant to be exercised with the form of election to purchase on the reverse thereof duly filled in and signed, which signature shall be guaranteed by a Cashless Exercisemember of the "Medallion System", and upon payment to the Warrant Agent for the account of the Company of the Exercise Price, as adjusted as herein provided, for each of the Warrant Shares in respect of which such Warrant is then exercised. Payment of the aggregate Exercise Price shall be payable to made, at the Company in lawful money option of the United States of America either Holder, (i) by wire transfer or by certified or official bank or bank cashier’s check made payable to the order of the Company Company, (or if agreed to in ii) by "CASHLESS EXERCISE," which shall mean the sole and absolute discretion surrender (which surrender shall be evidenced by cancellation of the Companynumber of Warrants represented by any Warrant Certificate presented in connection with a Cashless Exercise) of a Warrant or Warrants (represented by one or more Warrant Certificates), and without payment of the Exercise Price in cash, for such number of Warrant Shares equal to the product of (1) the number of Warrant Shares for which such Warrant is exercisable with payment in cash of the aggregate Exercise Price as of the date of exercise and (2) the Cashless Exercise Ratio (as defined below) or (iii) with any combination of (i) and (ii). For purposes of this Agreement, the "CASHLESS EXERCISE RATIO" shall equal a fraction, the numerator of which is the excess of the Current Market Price per share of the Common Stock on the date of exercise over the Exercise Price per share as of the date of exercise and the denominator of which is the Current Market Price per share of the Common Stock on the date of exercise. Upon surrender of a Warrant Certificate representing more than one Warrant in connection with the holder's option to elect a Cashless Exercise, the number of Warrant Shares deliverable upon a Cashless Exercise shall be equal to the Cashless Exercise Ratio multiplied by wire transfer in immediately available funds the number of Warrant Shares purchasable under the Warrant or, if only a portion of the Warrant is being exercised, the portion of the Warrant being exercised (without giving effect to the Cashless Exercise option). All provisions of this Agreement shall be applicable with respect to an account arranged with the Company prior to exercise).
(e) Any exercise of a Warrant Certificate pursuant to a Cashless Exercise for less than 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 full number of Warrants exercised in accordance with represented thereby. If, at the terms and conditions of this Warrant Agreement, (y) the instructions with respect to delivery time of the shares exercise of Common Stock any Warrant, the Company does not have an effective registration statement under the Securities Act of the Company deliverable upon such exercise, subject to the timely receipt from the Depository offer and sale 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 Shares by the Company to the Holder of the Warrant upon the exercise thereof, the Company may, in its sole discretion, which determination shall be final elect to require that the holder of the Warrant effect the exercise of the Warrant solely pursuant to the Cashless Exercise option and bindingmay also amend the Warrants to eliminate the requirement for payment of the Exercise Price with respect the Cashless Exercise option. The Warrant Agent shall incur have no liability for or in respect of and, except obligation under this section to calculate 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 CompanyCashless Exercise Ratio. The Company reserves shall calculate the right Exercise Price and the Cashless Exercise Ratio whenever such calculation is necessary and shall deliver an Officers' Certificate to reject any the Warrant Agent specifying such numbers. Subject to the provisions of Section 4 hereof, upon surrender of Warrants and all Warrant Exercise Notices not in proper form or for which any corresponding agreement by the Company to exchange would, in the opinion payment of the CompanyExercise Price as provided above, 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 thereupon promptly notify the Company, and the Company shall transfer to the holders Holder of the Warrants such Warrant Certificate appropriate evidence 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 ownership of any Warrant Shares or other securities or property (and in including 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:
(imoney) 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 the 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 Warrantsotherwise placed in, 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 or payable 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 entitledorder of, in fully registered form, registered in such name or names as may be directed in writing by the Holder, and shall deliver such holderevidence of ownership and any other securities or property (including any money) to the Person or Persons entitled to receive the same. Such Warrant Shares Any such evidence of ownership shall be deemed to have been issued and any person 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 surrender of such Warrants and payment of the Exercise Price. The Warrants shall be exercisable commencing on the Issue Date, at the election of the Holders thereof. If , either in full or from time to time in part and, in the event that a certificate evidencing Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time prior to the Expiration Datedate of expiration of the Warrants, a new certificate evidencing the remaining Warrant or Warrants will be issued, and the Warrant Agent is hereby irrevocably authorized to countersign and to deliver the required new Warrant Certificate or Certificates pursuant to the provisions of this Section and of Section 2.3 hereof, and the Company, whenever required by the Warrant Agent, will supply the Warrant Agent with Warrant Certificates duly executed on behalf of the Company for such purpose. All Warrant Certificates surrendered for the purpose of exercise (in whole or in part), exchange, substitution or transfer shall, if surrendered to the Company or to any of its agents, be delivered to the Warrant Agent for cancellation or in cancelled form, or if surrendered to the Warrant Agent shall cause a notation to be made cancelled by it, and no Warrant Certificates shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Agreement. If the Company purchases or acquires Warrants and if the Company so chooses, the Company may deliver to the records maintained by Warrant Agent for cancellation and retirement, and the Depository, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellon, as custodian for the DepositoryAgent shall so cancel and retire, 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 Certificates evidencing said 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 destroy such cancelled Warrant Certificates, and in such case shall upon the written request of the Company as directed by deliver a certificate of destruction thereof to the Company. The Warrant Agent shall account promptly to the Company by the end of each day or on the next business day following each day on which with respect to 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company all funds monies received by the Warrant Agent in payment for the purchase of the aggregate Exercise PriceWarrant Shares through the exercise of such Warrants. 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 hereunderhereunder by or from the Company available for inspection by the Holders during normal business hours at its office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may request.
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, each Warrant holder Holder shall have the right, which may be exercised in whole or in partduring the period commencing at the opening of business on January 24, at any time 2001 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 until 5:00 p.m., New York City timetime on January 23, on the date that is the seven year anniversary of the Effective Date 2011 (the “Expiration Date”"Exercise Period"), 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 and payment in cash of the aggregate exercise price (the "Exercise Price Price") then in effect for such Warrant Shares. The Company Shares by wire transfer or by certified or official check payable to the order of the Company; provided that Holders shall promptly provide be able to exercise their Warrants only if a registration statement relating to the Warrant Agent with written notice Shares is then in effect, or the exercise of such Warrants is exempt from the registration requirements of the Expiration DateSecurities Act, and such Warrant Shares are qualified for sale or exempt from qualification under the applicable securities laws of the states in which the various holders of the Warrants or other Persons to whom it is proposed that the Warrant Shares be issued on exercise of the Warrants reside. After Each Warrant not exercised prior to 5:00 p.m., New York City time, on January 23, 2011 (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 agreement shall cease as of 5:00 p.m., New York City such time, on . No adjustments as to dividends will be made upon exercise of the Expiration DateWarrants.
(db) Unless exercised pursuant In order to exercise all or any of the Warrants represented by a Cashless ExerciseWarrant Certificate, the holder thereof must deliver to the Warrant Agent at its office designated for such purpose set forth in Section 15 hereof the Warrant Certificate and the form of election to purchase on the reverse thereof duly and properly filled in and signed, which signature shall be medallion guaranteed by an institution which is a member of a signature guarantee program recognized by the Securities Transfer Association, and upon payment to the Warrant Agent for the account of the Company of the Exercise Price, which is set forth in the form of Warrant Certificate attached hereto as Exhibit A, for the --------- number of Warrant Shares in respect of which such Warrants are then exercised. Payment of the aggregate Exercise Price shall be payable to the Company made in lawful money of the United States of America either cash, by wire transfer or 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).
(ec) Any exercise of a Warrant pursuant Subject to the terms provisions of this Section 5 hereof, upon compliance with clause (b) above, the Warrant Agreement Agent shall deliver or cause to be irrevocable and shall constitute a binding agreement between delivered with all reasonable dispatch, to or upon the written order of 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 such name or on behalf of holders names 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 Companyholder may designate, no later than two business days after receipt of a Warrant Exercise Notice, of (x) the receipt of such Warrant Exercise Notice and certificate or certificates for the number of whole Warrant Shares issuable upon the exercise of such Warrants exercised or other securities or property to which such holder is entitled hereunder, together with cash as provided in accordance with Section 9 hereof; provided that if any consolidation, merger or lease or sale of assets is proposed to be effected by the terms and conditions of this Warrant AgreementCompany as described in Section 8(l) hereof, (y) the instructions with respect to delivery of the or a tender offer or an exchange offer for shares of Common Stock shall be made, upon such surrender of Warrants and payment of the Company deliverable upon such exerciseExercise Price as aforesaid, 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 Depositoryshall, 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 possible upon its receipt of any Warrant (notice and instructions with respect thereto, but in any event not later than 10 business days two Business Days thereafter), deliver or cause to be delivered the Company shall issue, or otherwise deliver, in authorized denominations to or full number of Warrant Shares issuable 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 exercise of such holder or for the account of a participant Warrants in the Depository the number of shares of Common Stock manner described in this sentence or other securities or property to which such holder is entitledentitled hereunder, together with cash as provided 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 Section 9 hereof. Such 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 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 surrender of such Warrants and payment of the Exercise Price.
(d) The Warrants shall be exercisable, at the election of the holders thereof, either in full or from time to time in part. If fewer less than all the Warrants represented by a Warrant Certificate are exercised, such Warrant Certificate shall be surrendered and a new Warrant Certificate of the Warrants evidenced by a Global Warrant Certificate surrendered upon same tenor and for the exercise number of Warrants are which were not exercised at any time prior shall be executed by the Company and delivered to the Expiration Date, Warrant Agent and the Warrant Agent shall cause a notation to countersign the new Warrant Certificate, registered in such name or names as may be made to the records maintained directed in writing by the Depositoryholder, and, to and shall deliver 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 new Warrant Certificate to reflect such reduction in Warrants represented by the Global Person or Persons entitled to receive the same.
(e) All 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) Certificates surrendered 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 Certificates shall then be disposed of by or at the direction of Warrant Agent in a manner customary to the Company in accordance with applicable lawWarrant Agent. The Warrant Agent shall (x) advise an authorized representative of account promptly to the Company as directed by the Company by the end of each day or on the next business day following each day on which with respect to 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company all funds monies received by the Warrant Agent in payment for the purchase of the aggregate Exercise Price. The Warrant Agent shall confirm Shares through the exercise of such information to the Company in writing as promptly as practicableWarrants.
(kf) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunderhereunder available for inspection by the holders during normal business hours at its office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may reasonably request.
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant AgreementWarrant, each Warrant holder the Warrantholder shall have the right, which may be exercised in whole or in part, at any time and from time to timecommencing on May 9, beginning 2003, but before 5:00 p.m. Pacific Time on the date of original issuance of the Warrant pursuant to the terms of this Warrant Agreement and ending at 5:00 p.m.May 9, New York City time, on the date that is the seven year anniversary of the Effective Date 2008 (the “"Expiration Date”Time"), to exercise each Warrant and receive purchase from the Company up to the number of fully paid and nonassessable Warrant Shares which the holder Warrantholder 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, upon surrender to the Company at its principal executive office, of the certificate evidencing this Warrant Agreement shall to be irrevocable exercised, together with the attached Election to Exercise Warrant form duly filled in and shall constitute a binding agreement between the holder signed, 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 upon payment 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 Price (as defined in 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 determined in accordance with the provisions of Section 7 and 8 hereof) or as provided in Section 3(a)(i) hereof, for the number of Shares with respect to which such Warrant is then exercised. Payment of the aggregate Warrant Price shall be made in cash, wire transfer or by cashier's check or any combination thereof.
(b) Subject to the terms and conditions of this Warrant, upon such surrender 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 such Warrant Price 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)aforesaid, the Company shall issue, or otherwise deliver, in authorized denominations promptly issue and cause 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 be delivered to the Depository for the account of such holder Warrantholder 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 person or persons as directed the Warrantholder may designate 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 Warrantswriting, 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 the Warrantholder may designate in writing) for the number of duly authorized, fully paid and non-assessable whole Shares to be directed by purchased upon the exercise of this Warrant, and shall deliver to the Warrantholder Common Stock or cash, to the extent provided in Section 9 hereof, with respect to any fractional Shares otherwise issuable upon such holdersurrender. Such Warrant Shares 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 Warrant Shares as of the close of business on the date of the delivery surrender of this Warrant and payment of the Warrant Price, notwithstanding that the certificates representing such Shares shall not actually have been delivered or that the Share and Warrant transfer books of the Company shall then be closed. This Warrant shall be exercisable, at the sole election of the Warrantholder, either in full or from time to time in part and, in the event that any certificate evidencing this Warrant (or any portion thereof. If fewer ) is exercised prior to the Expiration Time with respect to less than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the exercise of Warrants are exercised Shares specified therein at any time prior to the Expiration DateTime, a new certificate of like tenor evidencing the remaining portion of this Warrant shall be issued by the Company, if so requested by the Warrantholder.
(c) Upon the Company's receipt of a facsimile or original of Warrantholder's signed Election to Exercise Warrant, the Company shall instruct its transfer agent to issue one or more stock certificates representing that number of shares of Common Stock which the Warrantholder is entitled to purchase in accordance with the terms and conditions of this Warrant Agent and the Election to Exercise Warrant attached hereto. The Company shall cause a notation act as Registrar and shall maintain an appropriate ledger containing the necessary information with respect to each Warrant and it shall not be necessary for the Warrantholder to send to the Company the original Warrants to be made exercised.
(d) Such exercise shall be effectuated by sending to the records maintained Company, or its attorney, a facsimile or original of the signed Election to Exercise Warrant which evidences Warrantholder's intention to exercise those Warrants indicated. The date on which the Election to Exercise Warrant is effective ("Exercise Date") shall be deemed to be the date on which the Warrantholder has delivered to the Company a facsimile or original of the signed Election to Exercise Warrant. The Company shall deliver to the Warrantholder, or per the Warrantholder's instructions, the shares of Common Stock within three (3) business days of receipt of the Election to Exercise Warrants.
(e) Nothing contained in this Warrant shall be deemed to establish or require the payment of interest to the Warrantholder at a rate in excess of the maximum rate permitted by governing law. In the event that the rate of interest required to be paid exceeds the maximum rate permitted by governing law, the rate of interest required to be paid thereunder shall be automatically reduced to the maximum rate permitted under the governing law and such excess shall be returned with reasonable promptness by the Depository, and, Warrantholder to the extent Company.
(f) It shall be the Global Warrant Certificate Company's responsibility to take all necessary actions and to bear all such costs to issue the certificate of Common Stock as provided herein, including the responsibility and cost for delivery of an opinion letter to the transfer agent, if so required. The person in whose name the certificate of Common Stock is being held by The Bank to be registered shall be treated as a shareholder of New York Mellon, as custodian for record on and after the Depositoryexercise date. Upon surrender of any Warrants that are to be converted in part, the Company shall issue to the Warrantholder new Warrants equal to the unconverted amount, if so requested by Warrantholder.
(g) The Company shall at all times reserve and have available all Common Stock necessary to meet exercise of the Warrants by all Warrantholders of the entire amount of Warrants then outstanding. If, at any time Warrantholder submits an Election to Exercise Warrant Agent will cause and the Company does not have sufficient authorized but unissued shares of Common Stock available to effect, in full, a exercise of the Warrants (a "Exercise Default", the date of such custodian default being referred to make an appropriate notation on herein as the Global "Exercise Default Date"), the Company shall issue to the Warrantholder all of the shares of Common Stock which are available, and the Election to Exercise Warrant Certificate as to reflect such reduction in any Warrants represented by requested to be converted but not converted (the Global Warrant Certificate"Unconverted Warrants"), upon Warrantholder's sole option, may be deemed null and void. The Person Company shall provide notice of such Exercise Default ("Notice of Exercise Default") to all existing Warrantholders of outstanding Warrants, by facsimile, within one (1) business day of such default (with the original delivered by overnight or two day courier), and the Warrantholder shall give notice to the Company by facsimile within five (5) business days of receipt of the original Notice of Exercise Default (with the original delivered by overnight or two day courier) of its election to either nullify or confirm the Election to Exercise Warrant.
(h) Each person in whose name any certificate or certificates for the Warrant Shares are to shares of Common Stock shall be issued (or such Warrant Shares are to be registered, in the case of a book-entry transfer) upon exercise of a Warrant shall for all purposes be deemed to have become the holder of record of the Common Stock represented thereby on the date on which the Warrant was surrendered and payment of the purchase price and any applicable taxes was made, irrespective of date of issue or delivery of such Warrant certificate, except that if the date of such surrender and payment is a date when the Shares transfer books of the Company are closed, such person shall be deemed to have become the holder of such Shares on the next succeeding date on which such Warrant Exercise Notice is deliveredShare transfer books are open. The Company shall not close such Share transfer books at any one time for a period longer than seven (7) days.
(i) As provided This Warrant is exercisable in Section 16 hereof, no fractional shares whole or in part at the Exercise Price per share of Common Stock shall be issued upon exercise (as defined hereafter) payable hereunder, payable in cash or by certified or official bank check, by means of any sending to the Company, or its attorney, an Election to Exercise 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 exercisedstated above, of (i) to receive the number of shares of Common Stock issued upon exercise stated in such Election or by "cashless exercise" (only in the event the Shares underlying the Warrants have not been registered in an effective Registration Statement), by means of a Warrant, (ii) the notation sending to the records Company, or its attorney, an Election to Exercise Warrants, as stated above, to receive a number of shares of Common Stock equal to the Depository reflecting difference between the balance, if any, Market Value (as defined hereafter) of the shares of Common Stock issuable after such upon exercise of the this Warrant and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to total cash exercise price thereof. Upon transmitting the Company all funds received by the Warrant Agent in annexed Notice of Exercise duly executed, together with payment of the aggregate Exercise PricePrice for the shares of Common Stock purchased, or upon the "cashless exercise" as provided in this Section, the Holder shall be entitled to receive a certificate or certificates for the shares of Common Stock so purchased. The Warrant Agent For the purposes of this subsection, "Market Value" shall confirm such information be an amount equal to the Company in writing as promptly as practicable.
average closing bid price of a share of Common Stock for the ten (k10) The Warrant Agent shall keep copies days preceding the Company's receipt of the Notice of Exercise Form duly executed multiplied by the number of shares of Common Stock to be issued upon surrender of this Warrant Agreement and any notices given or received hereunderCertificate.
Appears in 1 contract
Sources: Warrant to Purchase Shares of Common Stock (Invisa Inc)
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, each Warrant holder Holder shall have the right, which may be exercised in whole or in part, commencing at any time and from time to time, beginning the opening of business on the date of original issuance of the Warrant pursuant to the terms of this Warrant Agreement Exercisability Date and ending at until 5:00 p.m., New York City time, on the date that is the seven year anniversary of the Effective Expiration 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 Holder may at the time be entitled to receive on exercise of such Warrants upon and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The A Warrant may be exercised upon surrender to the Company shall promptly provide at the principal office of 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 certificate or certificates evidencing the Warrant to be exercised with 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, form of election to purchase on the Expiration Datereverse thereof duly filled in and signed, which Warrant Exercise Notice signature shall be substantially guaranteed by a bank or trust company having an office or correspondent in the form set forth either (x) in Exhibit A hereto for holders who hold Book-Entry WarrantsUnited States or a broker or dealer which is a member of a registered securities exchange or the National Association of Securities Dealers, properly completed Inc., 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 upon payment to the Warrant Agent by book-entry transfer through for the facilities account of the Depository, if such Warrants are represented by a Global Warrant Certificate; and
(iii) paying to Company of the Company (x) the applicable Exercise Price multiplied by as adjusted as herein provided, for each of the number of shares of Common Stock Warrant Shares 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 such 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 exercised. Payment 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 shall be payable made 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 check, 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 . The exercise of a Warrant pursuant to the terms Warrants by Holders of this Warrant Agreement beneficial interest in Global Warrants shall be irrevocable and shall constitute a binding agreement between the holder and the Company, enforceable effected in accordance with its terms.
(f) The Warrant Agent shall:
(i) examine all Warrant Exercise Notices this Agreement and all other documents delivered the procedures of the Depositary therefor. Subject to it by or on behalf the provisions of holders as contemplated hereunder to ascertain whetherSection 8 hereof, 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 upon surrender 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 Price as to the validityprovided above, 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 thereupon promptly notify the holders of the Warrants of any irregularities in any exercise of WarrantsCompany, 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 promptly transfer facilities, by same-day or next-day credit to the Depository for the account Holder of such holder or for the account of Warrant Certificate 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 for the appropriate number of Warrant Shares to which such holder the Holder is entitled, in fully registered formor otherwise placed in, registered in or payable to the order of, such name or names as may be directed in writing by the Holder, and shall deliver such holdercertificate or certificates representing the Warrant Shares and any cash in lieu of any fraction of a share as provided in Section 14 to the person or persons entitled to receive the same. Such Any such certificate or certificates representing the 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 Holder of record of such Warrant Shares as of the close of business on the date of the delivery surrender of such Warrants and payment of the Exercise Price. The Warrants shall be exercisable commencing on the Exercisability Date, at the election of the Holders thereof. If , either in full or from time to time in part and, in the event that a certificate evidencing Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time prior to the Expiration Datedate of expiration of the Warrants, a new certificate evidencing the remaining Warrant or Warrants will be issued, and the Warrant Agent shall cause a notation is hereby irrevocably authorized to be made countersign and to deliver the required new Warrant Certificate or Certificates pursuant to the records maintained provisions of this Section and of Section 4 hereof, and the Company, whenever required by the DepositoryWarrant Agent, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellon, as custodian for the Depository, will supply the Warrant Agent will cause with Warrant Certificates duly executed on behalf of the Company for such custodian to make an appropriate notation on the Global purpose. All 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) Certificates surrendered upon exercise of a Warrant Warrants 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 canceled by the Warrant Agent. Such cancelled Global canceled Warrant Certificate Certificates shall then be disposed of by or at the direction of Warrant Agent in a manner satisfactory to the Company in accordance with applicable lawCompany. The Warrant Agent shall (x) advise an authorized representative of account promptly to the Company as directed by the Company by the end of each day or on the next business day following each day on which with respect to 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company all funds monies received by the Warrant Agent in payment for the purchase of Warrant Shares through the aggregate Exercise Priceexercise of such Warrants. 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 hereunderhereunder by or from the Company available for inspection by the Holders during normal business hours at its office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may request.
Appears in 1 contract
Sources: Warrant Agreement (Hvide Marine Inc)
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Each 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 entitles 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 purchase shares of Common Stock that at an “Exercise Price” of $ per share (the Company shall “Basic Subscription Privilege”). Additionally, there is an oversubscription privilege with respect to unsubscribed shares (the “Oversubscription Privilege”). No fractional shares will 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 Companyissued. Subject Reference is hereby made 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 Shelf Registration Statement relating 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 registration of shares of Common Stock in respect filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, on or about , 2005 and the prospectus supplement to be filed with the Securities and Exchange Commission under the Securities Act of 1933 on or about , 2005 (collectively the “Prospectus”) for a complete description of the Basic Subscription Privilege and Oversubscription Privilege, the Rights Offering, and the terms of the exercise of the Warrants. A copy of the Prospectus has been provided to the Warrant Agent, receipt 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 is hereby acknowledged. The Rights Offering 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 conducted in the Cashless Exercise. The number of shares of Common Stock to be issued on such exercise will be determined by manner and upon the Company (with written notice thereof to the Warrant Agent) using the formula terms 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 exerciseProspectus, pursuant to this Section 9(b), which 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 incorporated herein by the Company of the relevant number of shares of Common Stock to be issued.
(c) Subject to the adjustments reference and made part hereof as if 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 Stockfull herein. Each Warrant not exercised pursuant to this Warrant Agreement prior to the Expiration Date expiration date set forth in the Prospectus, shall become void and all rights thereunder and all rights in respect thereof under this Warrant Agreement shall cease as of such time. A Warrant may be exercised upon surrender to the Company at the principal corporate trust office of the Warrant Agent referred to in Section 12 (the “Warrant Agent Office”) of an exercise form to exercise the Warrants duly filled in and signed, together with the shares of Common Stock, by physical delivery of certificates evidencing Common Stock or transfer of Common Stock through DTC, as applicable, evidencing the Warrants to be exercised (the “Tendered Shares”) and upon payment to the Warrant Agent for the account of the Company of the Exercise Price for each Warrant Share then exercised. Payment of the aggregate Exercise Price shall be made in U.S. dollars by (i) check or bank draft drawn upon a U.S. bank or postal, telegraphic or express money order payable to the Warrant Agent or (ii) wire transfer of immediately available funds directed to American Stock Transfer & Trust Company, c/o Chase Manhattan Bank, ABA No. , Credit Account No. ,. The Exercise Price for all Warrants which have been exercised and the related Tendered Shares shall be held in escrow in a separate account by the Warrant Agent. Warrant Agent shall notify the Company by telephone before the close of business on each business day during the period commencing five (5) business days after the mailing of the Prospectus and ending at the expiration date (a “Daily Notice”), which notice shall thereafter be confirmed in writing, of (i) number of Warrants which have been exercised pursuant to both the Basic Subscription Privilege and the Oversubscription Privilege on the day covered by such daily notice, and (ii) the number of Warrants which have been exercised pursuant to both the Basic Subscription Privilege and the Oversubscription Privilege for which defective exercises have been received on the day covered by such daily notice, and (iii) the cumulative total of the information set forth in clauses (i) through (ii) above. At or before 5:00 p.m., New York City time, on the Expiration Date.
(d) Unless exercised pursuant to a Cashless Exercisefirst trading day following the expiration date, the Exercise Price Warrant Agent shall be payable certify in writing to the Company the cumulative total through the expiration date of all the information set forth 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:
clauses (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;
through (ii) inform the Company of above 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 be outstanding after giving effect to such account as directed in the exercises. Warrant Exercise Notice by such holder Agent shall also maintain and update a listing of holders who have fully or by the direct participant in the Depository through which such holder is acting; or
(ii) if such holder holds the Warrants being partially exercised in the form of Book-Entry their Warrants, a book-entry interest in holders who have transferred their Common Stock and their transferees, and holders who have not exercised their Warrants. Warrant Agent shall provide the shares Company or its designees with such information compiled by Warrant Agent pursuant to this paragraph as any of them shall request. The Company may request each of its shareholders to provide the Company additional information regarding its ownership of Common Stock registered on the books if, as a result of the transfer agent for such exercises, there would be a risk that they would become a “5% Stockholder,” as such term is defined in Article Fifth of 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 Certificate 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 holderIncorporation. Such Warrant Shares shall be deemed to have been issued and If any person so designated to would be named therein shall be deemed to have become a holder at risk 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.becoming
Appears in 1 contract
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 the original issuance of the Warrant pursuant Certificates and prior to the terms of this Warrant Agreement and ending at 5:00 p.m., p.m. New York City timeTime, on the date that is the seven year anniversary of the Effective Date June 21, 2012 (the “Expiration Date”), to exercise each Warrant and receive from the Company the number of fully paid and nonassessable Warrant Shares shares of the Common Stock which the holder may at the time be entitled to receive on exercise of such Warrants upon and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company shall promptly provide the Warrant Agent with written notice shares of the Expiration DateCommon Stock. After 5:00 p.m.In addition, New York City time, on the Expiration Date, the Warrants will become wholly void and of no value. Prior prior to the delivery of any shares of the 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 Each Warrant, when exercised, will entitle the holder thereof to purchase one share of the Common Stock at the Exercise Price then Price, in effect for such share of Common Stockeach case as adjusted from time to time as herein provided. 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.such time. NO WARRANT OR ANY SHARES OF COMMON STOCK RECEIVED ON EXERCISE OF A WARRANT MAY BE OFFERED FOR SALE, New York City timeSOLD, on the Expiration Date.
TRANSFERRED OR ASSIGNED EXCEPT (dA)(1) Unless TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OF FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) TO AN INSTITUTION THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, (3) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT PURSUANT TO RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION THEREFROM. WARRANTS AND THE SHARES OF COMMON STOCK RECEIVED ON EXERCISE OF A WARRANT MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED THEREBY. A Warrant may be exercised pursuant to a Cashless Exercise, the Exercise Price shall be payable upon surrender to the Company at the Warrant Agent Office referred to in lawful money Section 20 (the “Warrant Agent Office”) of the Warrant Certificate or Warrant Certificates evidencing the Warrants to be exercised with the form of election to purchase on the reverse thereof (the “Exercise Notice”) duly and properly completed and signed, which signature shall be guaranteed by an “Eligible Guarantor Institution” as defined in Rule 17Ad-15(2) promulgated under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), and upon payment to the Warrant Agent for the account of the Company of the exercise price of $25.16 (the “Exercise Price”), as adjusted from time to time as herein provided, for each Warrant then exercised. Payment of the aggregate Exercise Price for all shares of the Common Stock being exercised in respect of a Warrant Certificate shall be made (a) in United States of America either Dollars or (b) by certified or official bank or bank cashier’s check for United States Dollars made payable to the order of the Company (or if agreed to in the sole and absolute discretion “RCN Corporation”. In lieu of payment of the Companyaggregate Exercise Price as aforesaid and subject to applicable law, by wire transfer in immediately available funds to an account arranged with the Company prior to exercise).
(e) Any exercise holder of a Warrant pursuant may elect to receive from the Company a number of shares of the Common Stock equal to the terms of this Warrant Agreement shall be irrevocable and shall constitute a binding agreement between “Spread” by indicating such election in 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 Notice 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 holder. The “Spread” shall, subject to Section 14, be paid by the Company by delivering to such Warrant holder a number of and cooperate with and assist shares of the Company in resolving any reconciliation problems between Common Stock equal to (a)(i) 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, product of (x) the current market price per share of the Common Stock (as of the date of receipt of such Warrant the Exercise Notice and by the number of Warrants exercised in accordance with the terms and conditions of this Warrant Agreement, Company) multiplied by (y) the instructions with respect to delivery number 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 underlying the Warrants being made available exercised, minus (ii) the product of (x) the Exercise Price, multiplied by (y) the number of shares of the Common Stock underlying the Warrants being exercised, divided by (b) the current market price per share of the Common Stock (as of the date of receipt of the Exercise Notice by the Company). Subject to the Warrant Agent by or on behalf provisions of the Company for delivery to the DepositorySection 8, liaise with the Depository upon such exercise of Warrants 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.
, the Company shall issue and cause to be delivered promptly to or upon the written order of the Warrant holder and in such name or names, as the Warrant holder may designate, a certificate or certificates for the number of full shares of the Common Stock issuable upon the exercise of such Warrants together with cash as provided in Section 14; provided, however, that if any Fundamental Transaction (gas defined in Section 12(f)) All questions as is proposed to the validity, form and sufficiency (including time of receipt) of a Warrant exercise shall be determined effected by the Company in its sole discretion, which determination shall be final and binding. The Warrant Agent shall incur no liability or there is pending any tender offer or an exchange offer 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 shares of the CompanyCommon Stock, be unlawful. Such determination by upon such exercise of Warrants and payment of the Company shall be final and binding on the holders, absent manifest error. MoreoverExercise Price as aforesaid, 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 Warrantsshall, nor shall it incur any liability for the failure to give such notice.
(h) As as soon as reasonably practicable after the exercise of any Warrant (and possible, but in any event not later than 10 two business days thereafter), issue and cause to be delivered 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 full number of shares of the Common Stock to which issuable upon the exercise of such holder is entitled, in each case registered in such name and delivered to such account as directed Warrants in the manner described in this sentence together with any cash as provided in Section 14. For purposes of this 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 WarrantsAgreement, a book-entry interest “business day” means any day other than a Saturday, Sunday or a day on which banking institutions in the shares of Common Stock registered on the books of the transfer agent for the Company’s Common Stock (such agentNew York City are authorized or obligated by law, in such capacity, as may from time regulation or executive order 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 close or remain closed. Such 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 shares of the Common Stock as of the close of business on the date of the delivery exercise of such Warrants and payment of the aggregate Exercise Price. No fractional shares shall be issued upon exercise of any Warrants in accordance with Section 14. The Warrants shall be exercisable, at the election of the holders thereof. If , either in full or from time to time in part (in whole shares of the Common Stock) and, in the event that a Warrant Certificate evidencing Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon shares of the Common Stock issuable on such exercise of Warrants are exercised at any time prior to the Expiration Date, a new Certificate evidencing the remaining Warrant or Warrants will be promptly issued, and the Warrant Agent shall cause a notation is hereby irrevocably authorized and directed to be made countersign and to deliver the required new Warrant Certificate or Certificates pursuant to the records maintained provisions of this Section 7 and of Section 5, and the Company, whenever required 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 or under this Warrant Agreement, 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 supply the Warrant Shares are to be issued (or Agent with Warrant Certificates duly executed on behalf of the Company for such purpose. All Warrant Shares are to be registered, in the case of a book-entry transfer) Certificates surrendered 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 Certificates 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 exercised (i) the number of shares of Common Stock issued upon exercise of a WarrantWarrant and the number of Warrants exercised, (ii) the notation to the records delivery of the Depository reflecting Warrant Certificates evidencing the balance, if any, of the shares of Common Stock issuable Warrants after such exercise of the Warrants represented by each Warrant Certificate 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 it in payment of the aggregate Exercise Price. The Warrant Agent shall promptly confirm such information to the Company in writing as promptly as practicable.
(k) writing. The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunderhereunder available for inspection by the holders of the Warrants during normal business hours at the Warrant Agent Office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Warrant Agreement as the Warrant Agent may request.
Appears in 1 contract
Sources: Warrant Agreement (RCN Corp /De/)
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, each Warrant holder shall have the right, which Warrants may be exercised in whole or in part, at any time and from time to time, beginning on after the date of original issuance of the Warrant pursuant hereof and prior to the terms close of this Warrant Agreement and ending at 5:00 p.m., New York City time, business 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.Each Warrant, 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 when 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 = terms hereof and upon payment in cash of the number exercise price of shares of $.01 (as adjusted pursuant to Section 12(m)) per share for the 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 AgentPrice”) 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 acquire from the Company (or if agreed and the Company shall issue to in the sole such holder of a Warrant) one fully paid and absolute discretion non-assessable share of the Company, by wire transfer ’s authorized but unissued Common Stock (subject to adjustment as provided in immediately available funds to an account arranged with the Company prior to exerciseSection 12).
(e) Any exercise of a Warrant pursuant to the terms of this Warrant Agreement . No cash dividend shall be irrevocable and shall constitute paid to a binding agreement between the holder and the Company, enforceable in accordance with its terms.
(f) The of 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 Shares issuable 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 unless such holder was, as of the record date for the declaration of such dividend, the record holder of such Warrant Exercise Notices with regard Shares. A Warrant may be exercised upon surrender to any particular exercise of Warrants. Neither the Company nor at the Warrant Agent shall Register Office of the certificate or certificates evidencing the Warrants to be under any duty exercised with the form of election to give notice purchase on the reverse thereof duly filled in and signed, together with payment to the holders Company of the Warrants of any irregularities in any exercise of Warrants, nor shall it incur any liability Exercise Price for the failure to give such notice.
(h) As soon as reasonably practicable after each Warrant Share issuable upon the exercise of any such Warrants. Subject to the provisions of this Section 7, upon surrender of the Warrant (and in any event not later than 10 business days thereafter)certificate or certificates, the Company shall issueissue and deliver with all reasonable dispatch, or otherwise deliver, in authorized denominations to or upon the written order of the Warrant holder of and in such name or names as the WarrantsWarrant holder may designate, either:
(i) if such holder holds the Warrants being exercised through the Depository’s book-entry transfer facilities, by same-day a certificate or next-day credit to the Depository certificates for the account of such holder or for the account of a participant in the Depository the number of shares of Common Stock Warrant Shares issuable or other securities or property to which such holder is entitled, in each case registered in entitled hereunder upon the exercise of 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”) orincluding, at the Company’s option, by delivery to the address designated by such holder any cash payable in its Warrant Exercise Notice lieu of a physical fractional interests as provided in Section 16. Such 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 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 surrender of such Warrants and payment of the Exercise Price. The Company may issue fractional shares of Common Stock upon exercise of any Warrants in accordance with Section 16. The Warrants shall be exercisable, at the election of the holders thereof. If fewer than , either in full or from time to time in part (provided that Warrants shall be exercisable in multiples of 5,000 Warrants unless all of the Warrants evidenced by a Global particular certificate are being exercised) and, in the event that a certificate evidencing Warrants is exercised in respect of fewer than all of the Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time on or prior to the Expiration Date, a new certificate evidencing the remaining Warrant Agent shall cause a notation to or Warrants will be made to issued, and the records maintained by Company will duly execute and deliver the Depository, and, to the extent the Global required new 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 pursuant to the provisions of Section 4 and this Section 7. All Warrant Shares are to be issued (or such Warrant Shares are to be registered, in the case of a book-entry transfer) certificates surrendered upon exercise of a Warrant Warrants 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 canceled by the Warrant AgentCompany. Such cancelled Global canceled Warrant Certificate certificates shall then be disposed of by or at the direction of in a manner satisfactory to the Company and in accordance with any applicable law. The Warrant Agent Company shall (x) advise an authorized representative of account promptly in writing with respect to Warrants exercised and all monies received for 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 purchase of the Warrant and (iii) Shares through the exercise of such other information as Warrants. In the event that the Company shall reasonably require and (y) concurrently pay to purchase or otherwise acquire Warrants, the Company all funds received by may elect to have 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 practicableWarrants canceled and retired.
(k) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunder.
Appears in 1 contract
Sources: Warrant Agreement (Inphonic Inc)
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 at any time, and from time to time, in whole or in part, at any time and from time to time, beginning during the period commencing on the date of original issuance of the Warrant Certificates pursuant to the terms of this Warrant Agreement and ending at 5:00 p.m., p.m. New York City time, on the date that is the seven year anniversary of the Effective Date October 1, 2015 (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 and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company shall shall, promptly after the Expiration Date, provide the Warrant Agent with written notice of the Expiration Date. After 5:00 p.m.In addition, New York City time, on the Expiration Date, the Warrants will become wholly void and of no value. Prior prior to the delivery of any shares of Common Stock Warrant Shares 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 hereof12, 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.
(dc) 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 Subject to the terms of this Warrant Agreement shall be irrevocable and shall constitute a binding agreement between conditions set forth herein, the holder and of Warrants may, until 5:00 p.m. New York City time, on the CompanyExpiration Date, enforceable exercise, in accordance with its terms.
(f) The whole or in part, at any time or from time to time, such holder’s right to purchase Warrant Agent shallShares by:
(i) examine all providing written notice of such election (a “Warrant Exercise Notices Notice”) to exercise the Warrants to the Company and all other documents delivered Warrant Agent at the Warrant Agent Office, by overnight courier no later than 5:00 p.m. New York City time, on the Expiration Date, which Warrant Exercise Notice shall be in the form of an election to it purchase Warrant Shares substantially in the form set forth either (x) in Exhibit B-1 hereto, properly completed and duly executed by the holder, provided that such written notice may only be submitted by a holder with respect to Book-Entry Warrants; or (y) in Exhibit B-2 hereto, properly completed and duly executed by the holder, provided that such written notice may only be submitted with respect to Warrants held through the book-entry facilities of the Depositary, 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 through persons that are direct participants in accordance with their termsthe Depositary;
(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, delivering no later than two 5:00 p.m., New York City time, on the 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 day immediately prior to the timely receipt from the Depository of the necessary informationapplicable Settlement Date (as defined below), and (z) such other information as the Company shall reasonably require;
(iv) subject to the Common Stock being made available Warrants to the Warrant Agent by or on behalf book-entry transfer through the facilities of the Company for delivery to the Depository, liaise with the Depository and endeavor to effect if such delivery to the relevant accounts at the Depository in accordance with its requirementsWarrants are represented by a Global Warrant Certificate; and
(viii) pay subject to Section 8(h) below, paying the Company all funds received by the Warrant Agent in payment of the applicable 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 Price 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 AgentExercise Amount”) 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 together with all applicable taxes 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 Certificatecharges. 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 date three business days after 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 delivereddelivered is referred to for all purposes under this Warrant Agreement as the “Settlement Date”.
(id) 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 For purposes of this Warrant Agreement and any notices given or received hereunder.Section 8, the following terms shall have the meanings set forth below:
Appears in 1 contract
Sources: Warrant Agreement (Visteon Corp)
Terms of Warrants; Exercise of Warrants. The initial exercise price per share at which Warrant Shares shall be purchasable upon the exercise of Warrants (athe "Exercise Price") shall be equal to $1.00 per share. Each Warrant shall be initially exercisable for one share of Common Stock. 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 Warrants until 5:00 p.m., New York City timetime on February 22, on the date that is the seven year anniversary of the Effective Date 2004 (the “Expiration Date”"Exercise Period"), 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 and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company shall promptly provide the Each Warrant Agent with written notice of the Expiration Date. After not exercised prior to 5:00 p.m., New York City time, on the Expiration DateFebruary 22, 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 2004 shall become void and all rights thereunder and all rights in respect thereof under this Warrant Agreement agreement shall cease as of 5:00 p.m.such time. A Warrant may be exercised upon surrender to the Company at its principal office, New York City timewhich is currently located at the address listed in Section 13 hereof, of the certificate or certificates evidencing the Warrants to be exercised with the form of election to purchase on the Expiration Date.
(d) Unless exercised pursuant reverse thereof duly filled in and signed, which signature shall be guaranteed by a participant in a recognized Signature Guarantee Medallion Program and such other documentation as the Company may reasonably request, and upon payment to a Cashless Exercisethe Company for the account of the Company of the Exercise Price which is set forth in the form of Warrant Certificate attached hereto as Exhibit A as adjusted as herein provided, for the number of Warrant Shares in respect of which such Warrants are then exercised. Payment of the aggregate Exercise Price shall be payable to the Company made (i) in lawful money of the United States of America either cash or (ii) by certified or official bank or bank cashier’s check made payable to the order of the Company (or if agreed in New York Clearing House Funds. Subject to in the sole provisions of Section 5 hereof, upon such surrender of Warrants and absolute discretion payment of the CompanyExercise Price, by wire transfer in immediately available funds to an account arranged with the Company prior shall issue and cause to exercise).
(e) Any be delivered with all reasonable dispatch to and in such name or names as the Warrant holder may designate a certificate or certificates for the number of full Warrant Shares issuable upon the exercise of a Warrant pursuant such Warrants together with cash as provided in Section 10; provided, however, that if any consolidation, merger or lease or sale of assets is proposed to be effected by the terms of this Warrant Agreement shall be irrevocable and shall constitute a binding agreement between the holder and the Company, enforceable Company as described in accordance with its terms.
(f) The Warrant Agent shall:
subsection (i) examine all Warrant Exercise Notices and all other documents delivered to it by of Section 9 hereof, 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 tender offer or an exchange offer for shares of Common Stock of the Company deliverable shall be made, upon such exercise, subject to the timely receipt from the Depository surrender of the necessary information, Warrants 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 Price 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. Moreoveraforesaid, 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 Warrantsshall, nor shall it incur any liability for the failure to give such notice.
(h) As as soon as reasonably practicable after the exercise of any Warrant (and possible, but in any event not later than 10 two business days thereafter), issue and cause to be delivered 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 full number of Warrant Shares to which issuable upon the exercise of such holder is entitled, Warrants in fully registered form, registered the manner described in such name or names this sentence together with cash as may be directed by such holderprovided in Section 10. Such Warrant Shares 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 Warrant Shares as of the close of business on the date of the delivery surrender of such Warrants and payment of the Exercise Price. The Warrants shall be exercisable, at the election of the holders thereof. If , either in full or from time to time in part and, in the event that a certificate evidencing Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time prior to the Expiration Datedate of expiration of the Warrants, a new certificate evidencing the remaining Warrant Agent shall cause a notation or Warrants will be issued. The Company may assume that any Warrant presented for exercise is permitted to be made to the records maintained by the Depository, and, to the extent the Global so exercised under applicable law and shall have no liability for acting in reliance on such assumption. All 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) Certificates surrendered 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 lawCompany. 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 hereunderhereunder available for inspection by the holders with reasonable prior written notice during normal business hours at its office.
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, each Warrant holder Holder shall have the right, which may be exercised in whole or in part, at any time and from time to time, beginning time during the period commencing on the date of original issuance of the Warrant pursuant to the terms of this Warrant Agreement Warrants and ending at immediately prior to 5:00 p.m., New York City time, on the date that is the seven year anniversary of the Effective Date October 29, 2007 (the “Expiration Date”"Exercise Period"), to exercise each Warrant and receive from the Company the number of fully paid and nonassessable non-assessable Warrant Shares which the holder Holder may at the time be entitled to receive on upon exercise of such Warrants upon payment payment, subject to Section 3(f), of $5.114 per share of Common Stock, as adjusted from time to time in accordance with Section 7 (the "Exercise Price"), in cash, by wire transfer or by certified or official bank check payable to the order of the aggregate Exercise Price Company; provided that Holders holding Warrants shall be able to exercise their Warrants only in accordance with the procedures set forth in this Agreement and the Warrant Certificate and only if (i) a registration statement relating to the exercise of the Warrants and issuance of the Warrant Shares upon such exercise is then in effect for effective under the Securities Act of 1933, as amended (the "Securities Act"), or (ii) the exercise of such Warrants and the issuance of the Warrant Shares upon such exercise is exempt from the registration requirements of the Securities Act and such Warrant Shares. The Company shall promptly provide Shares are qualified for sale or exempt from registration or qualification under the Warrant Agent with written notice applicable securities laws of the Expiration Datestates in which the various Holders of the Warrants or other Persons to whom it is proposed that such Warrant Shares be issued upon exercise of the Warrants reside. After Each Warrant not exercised prior to 5:00 p.m., New York City time, on October 29, 2007 (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.such time. No adjustments as to dividends shall be made upon exercise of the Warrants.
(b) In order to exercise all or any of the Warrants, New York City timethe Holder thereof must deliver to the Warrant Agent at its office set forth in Section 11 (i) the Warrant Certificate (in the case of Definitive Warrants), (ii) the form of election to purchase on the Expiration Datereverse thereof duly and properly filled in and signed, which signature shall be guaranteed by a bank or trust company having an office or correspondent in the United States or a broker or dealer which is a member of a registered securities exchange or the National Association of Securities Dealers, Inc., and (iii) subject to Section 3(f), payment to the Warrant Agent for the account of the Company of the Exercise Price for the number of Warrant Shares in respect of which such Warrants are then exercised, as provided in Section 3(a).
(c) If, at the time of the surrender of a beneficial interest in any Restricted Global Warrant or a Restricted Definitive Warrant in connection with any exercise of such Warrant, such exercise and the issuance of the Warrant Shares issuable upon such exercise shall not be registered under the Securities Act, it shall be a condition to such exercise and the issuance of such Warrant Shares that (i) the Holder of such Warrant furnish to the Company an investment letter substantially in the form of Exhibit B hereto and (ii) the Holder or each other Person to whom it is proposed that such Warrant Shares be issued qualify as an "accredited investor" as defined in Rule 501(a) of Regulation D under the Securities Act. The Company may waive compliance with such condition, in whole or in part, in its sole discretion.
(d) Unless exercised pursuant to a Cashless Exercise, the Exercise Price shall be payable Subject to the Company in lawful money provisions 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 Section 10, upon specific written instruction from 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 deliver or cause to be under any duty to give notice to the holders of the Warrants of any irregularities in any exercise of Warrantsdelivered with all reasonable dispatch, 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 the Holder may be directed designate in writing, a certificate or certificates for the number of whole Warrant Shares issuable upon exercise of the Warrants delivered by such holderthe Holder for exercise. Such Warrant Shares certificate or certificates shall be deemed to have been issued and any person 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 surrender of such Warrants and, subject to Section 3(f), payment of the Warrants evidenced by Exercise Price; provided, however, that if such Person would be so deemed to have become a Global Warrant Certificate surrendered upon the exercise holder 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 record 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 as of a book-entry transfer) upon exercise date of a Warrant record referred to in Section 7(d), then, notwithstanding the foregoing, such Person shall be deemed to have become the a holder of record of such Warrant Shares on the first Business Day immediately following such date such Warrant Exercise Notice is deliveredof record.
(ie) As The Warrants shall be exercisable, at the election of the Holders thereof, either in full or from time to time in part, provided that Warrants may not be exercised by any Holder for an amount less than 100 Warrant Shares unless such Holder only owns, in the aggregate, such lesser amount. If fewer than all the Warrants represented by a Warrant Certificate are exercised, such Warrant Certificate shall be surrendered and a new Warrant Certificate of the same tenor and for the number of Warrants which were not exercised shall be executed promptly by the Company and delivered promptly to the Warrant Agent and, upon written notice thereof from the Company, the Warrant Agent shall countersign the new Warrant Certificate, registered in such name or names as may be directed in writing by the Holder, and shall promptly deliver the new Warrant Certificate to the Person or Persons entitled to receive such new Warrant Certificate (as specified in writing by the Company).
(f) Subject to the last sentence of this Section 16 hereof3(f), in lieu of making the payment of the Exercise Price in connection with the exercise of each Warrant pursuant to Section 3(a) (but in all other respects in accordance with the exercise procedure set forth above, as such exercise procedure may be adjusted to reflect the conversion referred to herein), the Holder of each Restricted Warrant may elect to convert such Restricted Warrant into shares of Common Stock by providing the Company and the Warrant Agent with joint written notification of such election, in which event the Company shall issue to such Holder the number of shares of Common Stock calculated in accordance with the following formula: X = (A - B) x C --------------- A where X = the number of shares of Common Stock issuable upon exercise pursuant to this Section 3(f) A = the Closing Price on the Business Day immediately preceding the date on which the Holder delivers the Warrant Certificate and form of election to purchase to the Company pursuant to Section 3(b) B = the Exercise Price C = the number of shares of Common Stock as to which such Restricted Warrant is being exercised pursuant to Section 3(a) If the foregoing calculation results in a negative number, no fractional shares of Common Stock shall be issued upon conversion pursuant to this Section 3(f). Notwithstanding any provision of this Agreement to the contrary, the Holder of any Restricted Warrant may elect to convert such Restricted Warrant into shares of Common Stock as provided in this Section 3(f) only if the Board of Directors shall determine that upon such conversion the Company shall receive consideration in an amount not less than the par value of the shares of Common Stock issuable upon such conversion. Any reference in this Agreement or any Warrant to exercise of any Warrantsa Warrant shall be deemed also to refer to conversion of a Restricted Warrant in accordance with this Section 3(f), as the context may require.
(jg) If all All Warrant Certificates surrendered upon exercise 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 Certificates shall then be disposed of by or at the direction of the Company Warrant Agent in accordance with applicable lawits customary manner. The Warrant Agent shall (x) advise an authorized representative of account promptly to the Company as directed by the Company by the end of each day or on the next business day following each day on which with respect to 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company all funds monies received by the Warrant Agent in payment for the purchase of the aggregate Exercise Price. The Warrant Agent shall confirm Shares through the exercise of such information to the Company in writing as promptly as practicableWarrants.
(kh) The Warrant Agent shall keep copies of this Warrant Agreement and any written notices given or received hereunderhereunder available for inspection by the Holders during normal business hours at its office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may reasonably request.
(i) For so long as the Holders of the Warrants on the Issue Date continue to be the beneficial and record owners of at least 50% of all Warrants then outstanding, in the event of:
(i) any taking by the Company of a record of the holders of any class of securities of the Company for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, or any right to subscribe for, purchase or otherwise acquire any shares of Capital Stock of any class or any other securities or property, or to receive any other right, other than, in each case, (A) a regular quarterly or other periodic dividend publicly announced by the Company or provided for in the instrument governing such class of securities (including, without limitation, dividends payable on the Series A Preferred Stock pursuant to the Series A Certificate of Designation as in effect on or prior to the Amendment Date or on the Series B Preferred Stock pursuant to the Series B Certificate of Designation as in effect on the Amendment Date), (B) any other issuance of Series B Preferred Stock after the Amendment Date pursuant to the Series B Certificate of Designation as in effect on the Amendment Date or (C) a regular quarterly or other periodic payment of interest in cash or securities on any issue of the Company's indebtedness in accordance with the instrument governing such indebtedness, or
(ii) the proposed filing of a certificate of dissolution in connection with any Liquidation Event, then and in each such event the Company shall give or cause to be given to each Holder of the Warrants a written notice (with a copy thereof to the Warrant Agent) specifying (i) the date on which any such record is to be taken for the purpose of such dividend, distribution or right and a description of such dividend, distribution or right or the date on which the filing of such certificate of dissolution is expected to be effected, as the case may be, and (ii) the date, if any, that is to be fixed, on which the holders of record of Common Stock (or other securities) shall be entitled to exchange their shares of Common Stock (or other securities) for securities or other property deliverable upon such event. Such notice shall be given at least 20 days prior to the date specified in such notice on which such event, action or record is to be taken or on which the filing of such certificate of dissolution is expected to be effected. Any failure by the Company to provide any such notice required by this Section 3(i) shall not affect the validity of any event, action or record required to be specified in such notice.
(j) Without limiting the generality of Section 3(i), any notice required by Section 3(i) to be given to the Holders of Warrants shall be deemed delivered (i) upon personal delivery to the Holder to be notified, (ii) when sent by confirmed telex or facsimile if sent during normal business hours of the recipient and, if not, then on the next Business Day, (iii) five days after having been deposited into the U.S. mails or (iv) one day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All notices required by Section 3(i) shall be sent to each Holder at such Holder's address appearing on the books of the Company.
Appears in 1 contract
Sources: Warrant Agreement (Itc Deltacom Inc)
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 on or in part, at any time and from time to time, beginning on after the date of original issuance of the Warrant pursuant to the terms of this Warrant Agreement and ending at Separation Date until 5:00 p.m., New York, New York City timetime on ________, on the date that is the seven year anniversary of the Effective Date 2007 (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 and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company shall promptly provide the ; provided, however, that no 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 holder 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”) entitled to exercise the Warrant to the Company and the Warrant Agent such holder's Warrants at the addresses set forth in Section 23 no later than 5:00 p.m.any time unless, 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 (i) a registration statement under the Securities Act of Common Stock will be issuable via 1933, as amended (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 "Securities Act"), relating to the Warrant AgentShares has been filed with, and declared effective by, the Securities and Exchange Commission (the "SEC"), and no stop order suspending the effectiveness of such registration statement has been issued by the SEC or (ii) 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 issuance of the number of shares of Common Stock to be issued on such exercise, Warrant Shares is permitted pursuant to this Section 9(b), is accurate or correct, nor shall an exemption from 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 registration requirements 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 Securities Act. Each Warrant, when exercised, will entitle the holder thereof to purchase one share 1.936 fully paid and nonassessable shares of Common Stock at the Exercise Price then in effect for such share of Common StockPrice. Each Any 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.such time. No adjustments as to dividends will be made upon exercise of the Warrants. The Warrants may be exercised by surrendering to the Company the Warrant Certificates evidencing the Warrants to be exercised with the accompanying form of election to purchase properly completed and executed, New York City time, on together with payment of the Expiration Date.
(d) Unless exercised pursuant to a Cashless Exercise, Exercise Price. Payment of the Exercise Price shall may be payable made (A) by tendering shares of Preferred Stock having an aggregate Liquidation Preference (as defined in the Certificate of Designation), plus, without duplication, accumulated and unpaid dividends, if any, at the time of tender equal to the Company Exercise Price, (B) by tendering Exchange Notes having an aggregate principal amount, plus accrued and unpaid interest, if any, at the time of tender equal to the Exercise Price, (C) by tendering Warrants having a fair market value equal to the Exercise Price, (D) in lawful money the form of the United States of America either cash or by certified or official bank or bank cashier’s check made payable to the order of the Company or (E) by any combination of shares of Preferred Stock, Warrants and cash or if agreed to in Exchange Notes, Warrants and cash. For purposes of clause (C) above, the sole and absolute discretion fair market value of the CompanyWarrants shall be determined as follows: (A) if the Common Stock is publicly traded and listed on the Nasdaq National Market or a national securities exchange, the fair market value shall be equal to the greater of (1) the difference between (a) the average closing price as quoted on the Nasdaq National Market of the Common Stock for each of the ten trading days immediately prior to the exercise date (or, if the Common Stock is listed on a national securities exchange, the average closing price as reported on such national securities exchange during such ten trading day period) and (b) the Exercise Price, and (2) zero; or (B) if the Common Stock is not publicly traded, or otherwise is not listed on a national securities exchange, the fair market value shall be equal to the value per share as determined in good faith by wire transfer in immediately available funds to an account arranged with the Board of Directors of the Company prior to exercise(the "Board of Directors").
(e) Any exercise . If Preferred Stock or Exchange Notes are surrendered in payment of a the Exercise Price, the Warrant pursuant Agent shall deliver such Preferred Stock or Exchange Notes, as applicable, to the terms Company and the Company shall deliver such Preferred Stock to the Transfer Agent or such Exchange Notes to the Exchange Note Trustee, as applicable, for cancellation and the Transfer Agent or Exchange Note Trustee, as applicable, shall notify the Company in writing whether such Preferred Stock or Exchange Notes, as applicable, were in good form and, if such Preferred Stock or Exchange Notes, as applicable, were in good form the Company shall notify the Warrant Agent in writing that the Company has received full and proper payment of this Warrant Agreement the Exercise Price. Subject to the provisions of Section 10 hereof, upon such surrender of Warrants and payment of the Exercise Price, the Company shall issue and cause to be irrevocable and shall constitute a binding agreement between delivered with all reasonable dispatch to or upon the written order of 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 such name or on behalf of holders names 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 Companyholder may designate, no later than two business days after receipt of a Warrant Exercise Notice, of (x) the receipt of such Warrant Exercise Notice and certificate or certificates for the number of full Warrant Shares issuable upon the exercise of such Warrants exercised together with cash, if any, as provided in accordance with Section 16 hereof; provided, however, that if any consolidation, merger or lease or sale of assets is proposed to be effected by the terms and conditions Company as described in subsection (o) of this Warrant AgreementSection 14 hereof, (y) the instructions with respect to delivery of the or a tender offer or an exchange offer for shares of Common Stock of the Company deliverable shall be made, upon such exercise, subject to the timely receipt from the Depository surrender of the necessary information, Warrants 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.
Price as aforesaid, the Successor Guarantor (gas hereinafter defined) 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 holdersas applicable, absent manifest error. Moreovershall, 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 as soon as reasonably practicable after the exercise of any Warrant (and possible, but in any event not later than 10 two business days thereafter), issue and cause to be delivered 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 full number of Warrant Shares to which issuable upon the exercise of such holder is entitledWarrants in the manner described in this sentence together with cash, if any, as provided in fully registered form, registered in such name or names as may be directed by such holderSection 16 hereof. Such Warrant Shares 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 Warrant Shares as of the close of business on the date of the delivery surrender of such Warrants and payment of the Exercise Price. No fractional shares shall be issued upon exercise of any Warrants in accordance with Section 16 hereof. The Company will pay to the holder of the Warrant at the time of exercise an amount in cash equal to the current market value of any such fractional share of Common Stock less a corresponding fraction of the Exercise Price. The Warrants shall be exercisable, at the election of the holders thereof. If , either in full or from time to time in part (in whole shares) and, in the event that a certificate evidencing Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time prior to the Expiration Date, a new certificate evidencing the remaining Warrant or Warrants will be issued, and the Warrant Agent shall cause a notation is hereby irrevocably authorized to be made countersign and to deliver the required new Warrant Certificate or Certificates pursuant to the records maintained provisions of this Section and of Section 4 of this Agreement, and the Company, whenever required by the DepositoryWarrant Agent, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellon, as custodian for the Depository, will supply the Warrant Agent will cause with Warrant Certificates duly executed on behalf of the Company for such custodian to make an appropriate notation on the Global purpose. All 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) Certificates surrendered 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 Certificates 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 account promptly to the Company as directed by the Company by the end of each day or on the next business day following each day on which with respect to 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 exercised and (iii) such other information as the Company shall reasonably require and (y) concurrently pay to the Company all funds monies or surrender to the Company all shares of Preferred Stock or Exchange Notes received by the Warrant Agent in payment for the purchase of the aggregate Exercise PriceWarrant Shares through the exercise of such Warrants. 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 hereunderhereunder available for inspection by the holders during normal business hours at its office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may request.
Appears in 1 contract
Terms of Warrants; Exercise of Warrants. (a) Subject to the terms of this Warrant Agreement, each Warrant holder Holder shall have the right, which may be exercised in whole or in partcommencing at 9:00 a.m., at any time and from time to New York City time, beginning on the date of original issuance of the Warrant pursuant to the terms of this Warrant Agreement Issuance Date, and ending at until 5:00 p.m., New York City time, on the date that is the seven year second anniversary of the Effective Date (the “Expiration Issuance Date”), to exercise each Warrant and receive purchase from the Company the number of fully paid and nonassessable Warrant Shares which the holder Holder may at the time be entitled to receive (the "Exercise Quantity") on exercise of such Warrants upon and payment of the aggregate Exercise Price (as defined below) then in effect for such Warrant Shares. The Company shall promptly provide the Each Warrant Agent with written notice of the Expiration Date. After not exercised prior to 5:00 p.m., New York City time, on the Expiration second anniversary of the Issuance 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 Agreement and the Warrant Agreement Certificates shall cease as of 5:00 p.m.such time. If the date on which the Warrants expire (i.e., New York City timethe second anniversary of the Issuance Date) or the date on which they became exercisable (i.e., the Issuance Date) shall not be a business day, the Warrants shall expire or become exercisable, as the case may be, on the Expiration Date.
next succeeding business day. A Warrant may be exercised upon surrender to the Company at the office of the Warrant Agent designated for such purpose of the Warrant Certificate or Certificates evidencing the Warrants to be exercised with the form of election to purchase on the reverse thereof duly filled in and signed, which signature shall be guaranteed in accordance with the Medallion Signature Guarantee Program by a bank or trust company having an office or correspondence in the United States, or a broker or dealer which is a member of a registered securities exchange or the National Association of Securities Dealers, Inc. (d) Unless exercised pursuant together, in the case of a Non-Surviving Combination (as defined below), with such other documentation required to a Cashless Exercisebe delivered by holders of Common Stock before such Holders are entitled to receive consideration in respect of their shares), and upon payment to the Warrant Agent for the account of the Company of the Exercise Price for the number of Warrant Shares in respect of which such Warrants are then exercised. Payment of the aggregate Exercise Price shall be payable to the Company made in lawful money of the United States of America either cash or by certified or official bank or bank cashier’s check made payable to the order of the Company. The Company (or if agreed shall have the right to accept personal checks, in the its sole and absolute discretion at any time and from time to time, provided, however, that payment of the Exercise Price for any Warrant Shares shall not be deemed to have been made until such personal check has been collected and such funds credited to the Company's account. Subject to the provisions of Section 7 hereof, by wire transfer in immediately available funds to an account arranged with upon such delivery of Warrants, delivery of required documents and payment of the Exercise Price, the Company prior (or the surviving entity in the case of a Non-Surviving Combination) shall issue and cause to exercise).
be delivered with all reasonable dispatch to or upon the written order of the Holder and in such name or names as the Warrant Holder may designate, a certificate or certificates for the number of full Warrant Shares (or other cash or property to which the Warrant Holder is entitled) issuable (or deliverable) upon the exercise of such Warrants together with cash as provided in Section 13; provided, however, that after the first public announcement that any consolidation, merger or lease or sale of assets is proposed to be effected by the Company as described in subsection (e) Any exercise of Section 12 hereof, or 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 tender offer 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 an exchange offer for shares of Common Stock of the Company deliverable shall be made, upon such exercisesurrender of Warrants, subject to the timely receipt from the Depository delivery of the necessary information, required documents 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 Price 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. Moreoveraforesaid, 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 Warrantsshall, nor shall it incur any liability for the failure to give such notice.
(h) As as soon as reasonably practicable after the exercise of any Warrant (and possible, but in any event not later than 10 five (5) business days thereafter), issue and cause to be delivered 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 full number of Warrant Shares to which issuable upon the exercise of such holder is entitled, Warrants in fully registered form, registered the manner described in such name or names this sentence together with cash as may be directed by such holderprovided in Section 13. Such Warrant Shares certificate or certificates (or such other cash or property) shall be deemed to have been issued (or delivered), and any person so designated to be named therein shall be deemed to have become a holder Holder of record of such Warrant Shares (or such other cash or property) as of the close of business on the date of the surrender of such Warrants, the delivery of required documents and payment of the Exercise Price. Subject to the provisions of this Agreement and the Warrant Certificates, the Warrants shall be exercisable, at the election of the Holders thereof. If , either in full or from time-to-time in part and, in the event that a certificate evidencing Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon the Shares issuable on such exercise of Warrants are exercised at any time prior to the Expiration Datedate of expiration of the Warrants, a new certificate evidencing the remaining Warrant or Warrants will be issued, and the Warrant Agent shall cause a notation is hereby irrevocably authorized to be made countersign and to deliver the required new Warrant Certificate or Certificates pursuant to the records maintained provisions of this Section and of Sections 3 and 4 hereof, and the Company, whenever required by the DepositoryWarrant Agent, and, to the extent the Global Warrant Certificate is being held by The Bank of New York Mellon, as custodian for the Depository, will supply the Warrant Agent will cause with Warrant Certificates duly executed on behalf of the Company for such custodian to make an appropriate notation on the Global purpose. All 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) Certificates surrendered upon exercise of a Warrant Warrants 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 canceled by the Warrant Agent. Such cancelled Global canceled Warrant Certificate Certificates shall then be disposed of by or at the direction of Warrant Agent in a manner satisfactory to the Company in accordance with applicable lawCompany. The Warrant Agent shall (x) advise an authorized representative account promptly to the Company with respect to Warrants exercised and concurrently pay to the Company all monies received by the Warrant Agent for the purchase of the Company as directed Warrant Shares through the exercise of such Warrants. The Warrant Agent shall keep copies of this Agreement and any notices given or received hereunder available for inspection by the Holders during normal business hours at its office. The Company by shall supply the end Warrant Agent from time-to-time with such numbers of each day or on copies of this Agreement as the next business day following each day on which Warrants were exercisedWarrant Agent may request. The Warrant Agent shall, from time-to-time, as promptly as practicable, advise the Company of (i) the number numbers of shares Warrants delivered to it in accordance with the terms and conditions of Common Stock issued upon exercise of a Warrantthis Agreement and the Warrant Certificates, (ii) the notation to the records instructions of each Holder of the Depository reflecting Warrant Certificates evidencing such Warrants with respect to delivery of the Warrant Shares or other cash or property to which such Holder is entitled upon such delivery, (iii) the delivery of Warrant Certificates evidencing the balance, if any, of the shares of Common Stock issuable Warrants remaining after such exercise of the Warrant delivery, and (iiiiv) such other information as the Company shall reasonably require and request. Warrant Holders, as such, shall not be entitled (yi) concurrently pay to receive any dividends in respect of such Holder's Warrant Shares, or (ii) to vote, or to receive notice of any meeting of the Company's stockholders, or otherwise exercise any rights of, or to receive any notices delivered to, Holders of Common Stock until such Holder surrenders certificates representing such Holder's Warrants to the Company Warrant Agent, pays the Exercise Price and delivers all funds received by other required documentation, all as set forth in this Agreement and the Warrant Agent Certificates, and the Warrant Shares in payment respect of the aggregate Exercise Price. The such Warrant Agent shall confirm are issued to such information to the Company in writing as promptly as practicableHolder.
(k) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunder.
Appears in 1 contract
Sources: Warrant Agreement (Todays Man Inc)
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 the original issuance of the Warrant pursuant Certificates and prior to the terms of this Warrant Agreement and ending at 5:00 p.m., p.m. New York City timeTime, on the date that is the seven year anniversary of the Effective Date June 21, 2012 (the “"Expiration Date”"), to exercise each Warrant and receive from the Company the number of fully paid and nonassessable Warrant Shares shares of the Common Stock which the holder may at the time be entitled to receive on exercise of such Warrants upon and payment of the aggregate Exercise Price then in effect for such Warrant Shares. The Company shall promptly provide the Warrant Agent with written notice shares of the Expiration DateCommon Stock. After 5:00 p.m.In addition, New York City time, on the Expiration Date, the Warrants will become wholly void and of no value. Prior prior to the delivery of any shares of the 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 Each Warrant, when exercised, will entitle the holder thereof to purchase one share of the Common Stock at the Exercise Price then Price, in effect for such share of Common Stockeach case as adjusted from time to time as herein provided. 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.such time. NO WARRANT OR ANY SHARES OF COMMON STOCK RECEIVED ON EXERCISE OF A WARRANT MAY BE OFFERED FOR SALE, New York City timeSOLD, on the Expiration Date.
TRANSFERRED OR ASSIGNED EXCEPT (dA)(1) Unless TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OF FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) TO AN INSTITUTION THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT, (3) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT PURSUANT TO RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION THEREFROM. WARRANTS AND THE SHARES OF COMMON STOCK RECEIVED ON EXERCISE OF A WARRANT MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED THEREBY. A Warrant may be exercised pursuant to a Cashless Exercise, the Exercise Price shall be payable upon surrender to the Company at the Warrant Agent Office referred to in lawful money Section 20 (the "Warrant Agent Office") of the Warrant Certificate or Warrant Certificates evidencing the Warrants to be exercised with the form of election to purchase on the reverse thereof (the "Exercise Notice") duly and properly completed and signed, which signature shall be guaranteed by an "Eligible Guarantor Institution" as defined in Rule 17Ad-15(2) promulgated under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), and upon payment to the Warrant Agent for the account of the Company of the exercise price of $25.16 (the "Exercise Price"), as adjusted from time to time as herein provided, for each Warrant then exercised. Payment of the aggregate Exercise Price for all shares of the Common Stock being exercised in respect of a Warrant Certificate shall be made (a) in United States of America either Dollars or (b) by certified or official bank or bank cashier’s check for United States Dollars made payable to the order of the Company (or if agreed to in the sole and absolute discretion "RCN Corporation". In lieu of payment of the Companyaggregate Exercise Price as aforesaid and subject to applicable law, by wire transfer in immediately available funds to an account arranged with the Company prior to exercise).
(e) Any exercise holder of a Warrant pursuant may elect to receive from the Company a number of shares of the Common Stock equal to the terms of this Warrant Agreement shall be irrevocable and shall constitute a binding agreement between "Spread" by indicating such election in 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 Notice 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 holder. The "Spread" shall, subject to Section 14, be paid by the Company by delivering to such Warrant holder a number of and cooperate with and assist shares of the Company in resolving any reconciliation problems between Common Stock equal to (a)(i) 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, product of (x) the current market price per share of the Common Stock (as of the date of receipt of such Warrant the Exercise Notice and by the number of Warrants exercised in accordance with the terms and conditions of this Warrant Agreement, Company) multiplied by (y) the instructions with respect to delivery number 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 underlying the Warrants being made available exercised, minus (ii) the product of (x) the Exercise Price, multiplied by (y) the number of shares of the Common Stock underlying the Warrants being exercised, divided by (b) the current market price per share of the Common Stock (as of the date of receipt of the Exercise Notice by the Company). Subject to the Warrant Agent by or on behalf provisions of the Company for delivery to the DepositorySection 8, liaise with the Depository upon such exercise of Warrants 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.
, the Company shall issue and cause to be delivered promptly to or upon the written order of the Warrant holder and in such name or names, as the Warrant holder may designate, a certificate or certificates for the number of full shares of the Common Stock issuable upon the exercise of such Warrants together with cash as provided in Section 14; provided, however, that if any Fundamental Transaction (gas defined in Section 12(f)) All questions as is proposed to the validity, form and sufficiency (including time of receipt) of a Warrant exercise shall be determined effected by the Company in its sole discretion, which determination shall be final and binding. The Warrant Agent shall incur no liability or there is pending any tender offer or an exchange offer 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 shares of the CompanyCommon Stock, be unlawful. Such determination by upon such exercise of Warrants and payment of the Company shall be final and binding on the holders, absent manifest error. MoreoverExercise Price as aforesaid, 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 Warrantsshall, nor shall it incur any liability for the failure to give such notice.
(h) As as soon as reasonably practicable after the exercise of any Warrant (and possible, but in any event not later than 10 two business days thereafter), issue and cause to be delivered 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 full number of shares of the Common Stock to which issuable upon the exercise of such holder is entitled, in each case registered in such name and delivered to such account as directed Warrants in the manner described in this sentence together with any cash as provided in Section 14. For purposes of this 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 WarrantsAgreement, a book-entry interest "business day" means any day other than a Saturday, Sunday or a day on which banking institutions in the shares of Common Stock registered on the books of the transfer agent for the Company’s Common Stock (such agentNew York City are authorized or obligated by law, in such capacity, as may from time regulation or executive order 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 close or remain closed. Such 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 shares of the Common Stock as of the close of business on the date of the delivery exercise of such Warrants and payment of the aggregate Exercise Price. No fractional shares shall be issued upon exercise of any Warrants in accordance with Section 14. The Warrants shall be exercisable, at the election of the holders thereof. If , either in full or from time to time in part (in whole shares of the Common Stock) and, in the event that a Warrant Certificate evidencing Warrants is exercised in respect of fewer than all of the Warrants evidenced by a Global Warrant Certificate surrendered upon shares of the Common Stock issuable on such exercise of Warrants are exercised at any time prior to the Expiration Date, a new Certificate evidencing the remaining Warrant or Warrants will be promptly issued, and the Warrant Agent shall cause a notation is hereby irrevocably authorized and directed to be made countersign and to deliver the required new Warrant Certificate or Certificates pursuant to the records maintained provisions of this Section 7 and of Section 5, and the Company, whenever required 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 or under this Warrant Agreement, 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 supply the Warrant Shares are to be issued (or Agent with Warrant Certificates duly executed on behalf of the Company for such purpose. All Warrant Shares are to be registered, in the case of a book-entry transfer) Certificates surrendered 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 Certificates 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 exercised (i) the number of shares of Common Stock issued upon exercise of a WarrantWarrant and the number of Warrants exercised, (ii) the notation to the records delivery of the Depository reflecting Warrant Certificates evidencing the balance, if any, of the shares of Common Stock issuable Warrants after such exercise of the Warrants represented by each Warrant Certificate 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 it in payment of the aggregate Exercise Price. The Warrant Agent shall promptly confirm such information to the Company in writing as promptly as practicable.
(k) writing. The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or received hereunderhereunder available for inspection by the holders of the Warrants during normal business hours at the Warrant Agent Office. The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Warrant Agreement as the Warrant Agent may request.
Appears in 1 contract
Sources: Warrant Agreement (RCN Corp /De/)
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, commencing at any time and from time to time, beginning the opening of business on the date of original issuance of the Exercise Date (as defined below) for such Warrant pursuant to the terms of this Warrant Agreement and ending at until 5:00 p.m., New York City time, on the date that is the seven year tenth anniversary of the Effective Date (the “Expiration Issuance 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 Warrant and 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 For purposes hereof, "Exercise Date. After 5:00 p.m." means, 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 (“for any Warrant Exercise Notice”) to exercise the other than any PIK 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 DateContingent Warrant, 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 Issuance 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) for any PIK Warrant, the notation date that the new Warrant Certificate(s) evidencing such PIK Warrants or notice of increase of Warrants evidenced by such holder's then existing Warrant Certificate(s), as applicable, are required to the records of the Depository reflecting the balancebe delivered in accordance with Section 10(o), if any, of the shares of Common Stock issuable after such exercise of the Warrant and (iii) for any Contingent Warrants, the date that the new Warrant Certificate(s) for such other information Warrants are required to be delivered pursuant to Section 10(p) and (iv) for any Warrant, the Mandatory Exercise Date (as defined below). At any time after May 31, 2001 but prior to the tenth anniversary thereof, upon the occurrence of a Mandatory Exercise Event the Company shall reasonably require and may, by delivery of written notice in substantially the form of Exhibit B hereto (ya "Mandatory Exercise Notice") concurrently pay to the Company all funds received by each registered holder of outstanding Warrants (as such holders may appear in the Warrant Agent in payment of Register), declare the aggregate Exercise Price. The Warrant Agent Date to have occurred for all (but not less than all) outstanding Warrants (a "Mandatory Exercise Date"); provided that such Mandatory Exercise Date 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.not occur -------- earlier than the
Appears in 1 contract
Sources: Warrant Agreement (Unidigital Inc)