Cashless Exercise Under Certain Circumstances. (i) The Company shall provide to the Holder prompt written notice of any time that the Company is unable to issue the Warrant Shares via DTC transfer or otherwise (without restrictive legend), because (A) the Commission has issued a stop order with respect to the Registration Statement, (B) the Commission otherwise has suspended or withdrawn the effectiveness of the Registration Statement, either temporarily or permanently, (C) the Company has suspended or withdrawn the effectiveness of the Registration Statement, either temporarily or permanently, or (D) otherwise (each a “Restrictive Legend Event”). To the extent that a Restrictive Legend Event occurs after the Holder has exercised a Warrant in accordance with the terms of the Warrants but prior to the delivery of the Warrant Shares, the Company shall, at the election of the Holder to be given within five (5) Business Days of receipt of notice of the Restrictive Legend Event, either (A) rescind the previously submitted Election to Purchase and the Company shall return all consideration paid by the Holder for such shares upon such rescission or (B) treat the attempted exercise as a cashless exercise as described in the next paragraph and refund the cash portion of the Exercise Price to the Holder.
(ii) If a Restrictive Legend Event has occurred and no exemption from the registration requirements is available, the Warrants shall only be exercisable on a cashless basis. Notwithstanding anything herein to the contrary, the Company shall not be required to make any cash payments or net cash settlement to the Holder in lieu of issuance of the Warrant Shares. Upon a “cashless exercise,” the Holder shall be entitled to receive a certificate (or book entry) for the number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = the VWAP on the Business Day immediately preceding the date on which the Holder elects to exercise the Warrant by means of a “cashless exercise,” as set forth in the applicable Election to Purchase;
(B) = the Exercise Price of the Warrant, as it may have been adjusted hereunder; and
(X) = the number of Warrant Shares that would be issuable upon exercise of the Warrant in accordance with the terms of the Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. Upon receipt of an Election to Purchase for a cashless exercise, the Warrant Agent will promptly deliver a copy of the Election to Purchase to the Company to confi...
Cashless Exercise Under Certain Circumstances. The Company shall provide to the Warrant Agent and each Holder prompt written notice of any time that there is no effective registration statement covering the Warrants and the Warrant Shares thereunder. Upon receipt of a Notice of Exercise for a cashless exercise, the Warrant Agent will promptly deliver a copy of the Notice of Exercise to the Company to confirm the number of Warrant Shares issuable in connection with the cashless exercise. The Company shall promptly calculate and transmit to the Warrant Agent in a written notice, and the Warrant Agent shall have no duty, responsibility or obligation under this section to calculate, the number of Warrant Shares issuable in connection with any cashless exercise. The Warrant Agent shall be entitled to rely conclusively on any such written notice provided by the Company, and the Warrant Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with such written instructions or pursuant to this Warrant Agreement.
Cashless Exercise Under Certain Circumstances. If a Restrictive Legend Event has occurred, the Warrant shall only be exercisable on a cashless basis. Notwithstanding anything herein to the contrary, the Company shall not be required to make any cash payments or net cash settlement to the Holder in lieu of delivery of the Shares. Upon a “cashless exercise”, the Holder shall be entitled to receive the number of Shares equal to the quotient obtained by dividing (A-B) (X) by (A), where:
(A) = the VWAP on the Trading Day immediately preceding the Exercise Date;
(B) = the Exercise Price of the Warrant, as adjusted as set forth herein; and
(X) = the number of Shares that would be issuable upon exercise of the Warrant in accordance with the terms of the Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. If the Shares are issued in such a cashless exercise, the Company acknowledges and agrees that, in accordance with Section 3(a)(9) of the Securities Act, the Shares shall take on the registered characteristics of the Warrants being exercised and the Company agrees not to take any position contrary thereto. A Holder shall promptly deliver a copy of the Election to Purchase to the Company to confirm the number of Shares issuable in connection with the cashless exercise. The Company shall calculate and transmit to the Holder in a written notice, the number of Shares issuable in connection with any cashless exercise.
Cashless Exercise Under Certain Circumstances. (i) The Company shall provide to the Holder and the Warrant Agent prompt written notice of any time that there is no effective registration statement registering, or the prospectus contained therein is not available for the issuance of the Warrant Shares to the Holder (each a “Restrictive Legend Event”). To the extent that a Restrictive Legend Event occurs after the Holder has exercised a Warrant in accordance with the terms of the Warrants but prior to the delivery of the Warrant Shares, the Company shall, at the election of the Holder to be given within five (5) Business Days of receipt of notice of the Restrictive Legend Event, either (A) rescind the previously submitted Notice of Exercise and the Company shall return all consideration paid by the Holder for such shares upon such rescission or (B) treat the attempted exercise as a cashless exercise as described in the next paragraph and refund the cash portion of the Exercise Price to the Holder.
(ii) Upon a “cashless exercise,” the Holder shall be entitled to receive a certificate (or book entry) for the number of Warrant Shares as calculated pursuant to Section 2(c) of the Form of Warrant. The Company shall calculate and transmit to the Warrant Agent, and the Warrant Agent shall have no obligation under this section to calculate, the number of Warrant Shares issuable in connection with a cashless exercise.
Cashless Exercise Under Certain Circumstances. (i) The Warrant shall also be exercisable on a cashless basis pursuant to Section 2(c) of the Book-Entry Warrant Certificate. Notwithstanding anything herein to the contrary, the Company shall not be required to make any cash payments or net cash settlement to the registered holder in lieu of issuance of the Warrant Shares.
(ii) Upon receipt of an Notice of Exercise for a cashless exercise, the Warrant Agent will promptly deliver a copy of the Notice of Exercise to the Company to confirm the number of Warrant Shares issuable in connection with the cashless exercise. The Company shall calculate and transmit to the Warrant Agent, and the Warrant Agent shall have no obligation under this section to calculate, the number of Warrant Shares issuable in connection with the cashless exercise.
Cashless Exercise Under Certain Circumstances. Notwithstanding anything contained herein to the contrary, if, at any time following the Issuance Date, a registration statement under the United States Securities Act of 1933, as amended, including any amendments or supplements thereto, registering the Warrant Shares (a “Registration Statement”) is not effective thereunder, prior to the Time of Expiry, and for so long as a Registration Statement is not effective, any holder of any Warrant must exercise the Warrants in whole or in part on a “cashless basis” and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Aggregate Exercise Price, receive upon such exercise the “Net Number” of Warrant Shares determined according to the following formula (a “Cashless Exercise”): Net Number = (A x B) - (A x C) B For purposes of the foregoing formula: A = the total number of Warrant Shares with respect to which the Warrants are then being exercised. B = the Weighted Average Price (as defined below) of the Common Shares (as reported by Bloomberg) for the five consecutive trading days ending on the date immediately preceding the Exercise Date. C = the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.
Cashless Exercise Under Certain Circumstances. The Company shall provide to the Warrant Agent and each Holder prompt written notice of any time that there is no effective registration statement covering the Warrants and the Warrant Shares thereunder, and each time during the Cashless Period (as defined in the Warrant) if the VWAP (as defined in the Warrant) of the Common Stock on any Trading Day during the Cashless Period fails to exceed the Exercise Price in effect as of the date hereof. Upon receipt of a Notice of Exercise for a cashless exercise, the Warrant Agent will promptly deliver a copy of the Notice of Exercise to the Company to confirm the number of Warrant Shares issuable in connection with the cashless exercise. The Company shall promptly calculate and transmit to the Warrant Agent in a written notice, and the Warrant Agent shall have no duty, responsibility or obligation under this section to calculate, the number of Warrant Shares issuable in connection with any cashless exercise. The Warrant Agent shall be entitled to rely conclusively on any such written notice provided by the Company, and the Warrant Agent shall not be liable for any action taken, suffered or omitted to be taken by it in accordance with such written instructions or pursuant to this Warrant Agreement.
Cashless Exercise Under Certain Circumstances. The Warrant may be exercisable on a cashless basis pursuant to Section 1(d) of the Warrant Certificate. Notwithstanding anything herein to the contrary, the Company shall not be required to make any cash payments or net cash settlement to the registered holder in lieu of issuance of the Warrant Shares. Upon receipt of a Notice of Exercise for a cashless exercise, the Warrant Agent shall promptly (and in any event within one (1) Business Day) deliver a copy of the Notice of Exercise to the Company to confirm that cashless exercise is permitted pursuant to Section 1(d) of the Warrant Certificate and, if so, the number of Warrant Shares issuable in connection with the cashless exercise. If the Company determines that the exercise on a cashless basis is permitted pursuant to Section 1(d) of the Warrant, the Warrant Agent shall calculate the number of Warrant Shares issuable in connection with the cashless exercise and promptly provide such calculation to the Company for review and confirmation. Subject to and conditioned upon confirmation by the Company of such calculations, the Warrant Agent shall transmit such shares in accordance with the exercise procedures set forth in the Warrant.
Cashless Exercise Under Certain Circumstances. The provisions of section 1(d) of the form of warrant attached hereto as Exhibit A hereto are incorporated herein by reference.
