Common use of Company Warrants Clause in Contracts

Company Warrants. At the Effective Time, the holder of each Common Share Warrant and Series B Share Warrant (each as defined in Section 4.03) shall be entitled to receive, and shall, upon surrender of such Warrant to Purchaser for cancellation, receive, in settlement and cancellation thereof, an amount of cash equal to the product of (x) the excess, if any, of the aggregate amount which the holder of such Warrant would be entitled to receive pursuant to Section 3.06 in respect of the Shares or Series B Shares issuable upon exercise of such Warrant if such Warrant were exercised immediately prior to the Effective Time with respect to all Shares or Series B Shares remaining to be exercised thereunder over the aggregate exercise price of each such Warrant with respect to all Shares or Series B Shares remaining to be exercised thereunder, and (y) the number of Shares or Series B Shares, as the case may be, remaining to be exercised under such Warrant, which payment shall be made to each such Warrant holder as soon as practicable after the Effective Time. The Company shall take all necessary action to effect the disposition of the Common Share Warrants and the Series B Share Warrants as contemplated by this Section 3.08. Upon surrender of such Warrants by the holders thereof, any Common Share Warrant or Series B Warrant not surrendered for cancellation as provided above shall survive the Merger and shall become a warrant to receive, upon payment of the exercise price provided for therein, an amount of cash based on the Per Share Amount (plus, in the case of the Series B Warrants, the liquidation preference set forth in the Certificate of Designation) in accordance with the merger adjustment provisions of each such Warrant.

Company Warrants. (a) At the Effective Time, by virtue of the Merger and without any further action by any party or any holder of Company Warrants, (i) each Common Share Stock Warrant and Series B Share Warrant (each outstanding as defined in Section 4.03) shall be entitled to receive, and shall, upon surrender of such Warrant to Purchaser for cancellation, receive, in settlement and cancellation thereof, an amount of cash equal to the product of (x) the excess, if any, of the aggregate amount which the holder of such Warrant would be entitled to receive pursuant to Section 3.06 in respect of the Shares or Series B Shares issuable upon exercise of such Warrant if such Warrant were exercised immediately prior to the Effective Time shall be canceled, and each holder thereof shall cease to have any rights with respect thereto, other than the right to all Shares or Series B Shares remaining to be exercised thereunder over the aggregate exercise price receive, in respect of each share of Company Common Stock that would be obtainable upon exercise of such Common Stock Warrant with respect as of immediately prior to all Shares or Series B Shares remaining to be exercised thereunder, and (y) the number of Shares or Series B Shares, as the case may be, remaining to be exercised under such Warrant, which payment shall be made to each such Warrant holder as soon as practicable after the Effective Time. The Company shall take all necessary action , (A) an amount in cash, without interest, equal to effect the disposition excess of the Per Common Equivalent Cash Consideration over the Applicable Exercise Price and (B) the Per Common Equivalent Stock Consideration (such cash and Parent Common Stock, together, the “Per Share Warrants Common Warrant Consideration”) (ii) each Preferred Stock Warrant outstanding as of immediately prior to the Effective Time shall be canceled, and each holder thereof shall cease to have any rights with respect thereto, other than the Series B Share Warrants as contemplated by this Section 3.08. Upon surrender of such Warrants by the holders thereof, any Common Share Warrant or Series B Warrant not surrendered for cancellation as provided above shall survive the Merger and shall become a warrant right to receive, in respect of each share of Company Preferred Stock that would be obtainable upon payment exercise of such Preferred Stock Warrant as of immediately prior to the Effective Time, (A) an amount in cash, without interest, equal to the excess of the exercise price provided for thereinPer Preferred Share Cash Consideration over the Applicable Exercise Price and (B) the Per Preferred Share Stock Consideration (such cash and Parent Common Stock, an amount of cash based on together, the “Per Share Preferred Warrant Consideration”, and together with the Per Share Amount (plusCommon Warrant Consideration, in whichever is applicable, the case “Per Share Warrant Consideration”); provided that the aggregate cash consideration payable to any Warrant Holder pursuant to this Section 2.06(a) shall be reduced by such Warrant Holder’s Pro Rata Portion of the Series B Warrants, the liquidation preference set forth in the Certificate of Designation) in accordance with the merger adjustment provisions of each such WarrantEscrow Amount to be withheld pursuant to Section 2.07).

Company Warrants. Each Company Warrant (or portion thereof) that (A) is outstanding and remains unexercised immediately prior to the Effective Time, shall, by virtue of the Merger, be immediately cancelled and extinguished and the holder thereof shall be entitled to receive upon the terms and subject to the conditions set forth in this Section 2.6 and throughout this Agreement, including the indemnity provisions set forth in Article X, in consideration of such cancellation, for each share of Company Common Stock as to which such Company Warrant is exercisable, and (B) is or will have been exercised prior to and effective conditionally upon the consummation of the Merger shall be entitled to receive upon the terms and subject to the conditions set forth in this Section 2.6 and throughout this Agreement, including the indemnity provisions set forth in Article X for each share of Company Common Stock issued upon exercise of such Company Warrant, an amount (the “Company Warrant Consideration”), without interest, equal to the sum of (i) the Per Share Upfront Warrant Consideration, (ii) following the Release Date and subject to and in accordance with Section 2.10(c), Article X and the Escrow Agreement, the Per Share Escrow Consideration, if any, (iii) following the final determination of the Closing Working Capital and the Closing Certificate pursuant to Section 2.10(b), the Per Share Working Capital Surplus, if any, and (iv) following the Representative Fund Release Date, the Per Share Representative Fund Consideration, if any. At the Effective Time, the all Company Warrants shall no longer be outstanding and shall automatically cease to exist, and each holder of each Common Share a Company Warrant and Series B Share Warrant (each as defined in Section 4.03) shall be entitled cease to receivehave any rights with respect thereto, and shall, upon surrender of such Warrant to Purchaser for cancellation, receiveexcept the rights, in settlement and cancellation thereof, an amount of cash equal each case subject to the product terms and conditions of (x) this Agreement and the excessEscrow Agreement, if any, of the aggregate amount which the holder of such Warrant would be entitled to receive pursuant to Section 3.06 in respect of the Shares or Series B Shares issuable upon exercise of such Company Warrant if such Warrant were exercised immediately prior to the Effective Time with respect to all Shares or Series B Shares remaining to be exercised thereunder over the aggregate exercise price of each such Warrant with respect to all Shares or Series B Shares remaining to be exercised thereunder, and (y) the number of Shares or Series B Shares, as the case may be, remaining to be exercised under such Warrant, which payment shall be made to each such Warrant holder as soon as practicable after the Effective Time. The Company shall take all necessary action to effect the disposition of the Common Share Warrants and the Series B Share Warrants as contemplated by this Section 3.08. Upon surrender of such Warrants by the holders thereof, any Common Share Warrant or Series B Warrant not surrendered for cancellation as provided above shall survive the Merger and shall become a warrant to receive, upon payment of the exercise price provided for therein, an amount of cash based on the Per Share Amount (plus, in the case of the Series B Warrants, the liquidation preference set forth in the Certificate of Designation) in accordance with the merger adjustment provisions of each such WarrantConsideration.

Company Warrants. Neither Parent nor Merger Sub shall assume any Company Warrant or substitute for any Company Warrant any similar warrant for Parent Common Stock in connection with the Merger or any of the other transactions contemplated by this Agreement. At the Effective Time, each Company Warrant that is outstanding and unexercised immediately prior thereto shall by virtue of the Merger and without any further action on the part of any holder of each Common Share any Company Warrant be cancelled and Series B Share Warrant converted into the right to receive from the Company at the Effective Time a cash payment (each as defined in Section 4.03without interest) shall be entitled to receive, and shall, upon surrender of such Warrant to Purchaser for cancellation, receive, in settlement and cancellation thereof, an amount of cash equal to (i) the product of (xA) the excess, if any, of (1) the aggregate amount which Common Stock Consideration over (2) the per share exercise price of such Company Warrant, and (B) the number of shares of Company Common Stock subject to such Company Warrant as of the Effective Time (the “Warrant Consideration”), less (ii) any applicable withholding Taxes required by applicable Law to be withheld. As of the Effective Time, all Company Warrants shall no longer be outstanding and shall automatically cease to exist, and each holder of such a Company Warrant would be entitled shall cease to have any rights with respect thereto, except the right to receive pursuant to Section 3.06 the Warrant Consideration. For the avoidance of doubt, if the exercise price payable in respect of a share of Company Common Stock underlying a Company Warrant equals or exceeds the Shares or Series B Shares issuable upon exercise of Common Stock Consideration, such Company Warrant if such Warrant were exercised shall be cancelled for no consideration immediately prior to the Effective Time and the holder thereof shall have no further rights with respect to all Shares or Series B Shares remaining to be exercised thereunder over the aggregate exercise price of each such Warrant with respect to all Shares or Series B Shares remaining to be exercised thereunder, and (y) the number of Shares or Series B Shares, as the case may be, remaining to be exercised under such Warrant, which payment shall be made to each such Warrant holder as soon as practicable after the Effective Time. The Company shall take all necessary action to effect the disposition of the Common Share Warrants and the Series B Share Warrants as contemplated by this Section 3.08. Upon surrender of such Warrants by the holders thereof, any Common Share Warrant or Series B Warrant not surrendered for cancellation as provided above shall survive the Merger and shall become a warrant to receive, upon payment of the exercise price provided for therein, an amount of cash based on the Per Share Amount (plus, in the case of the Series B Warrants, the liquidation preference set forth in the Certificate of Designation) in accordance with the merger adjustment provisions of each such Warrantthereto.

Company Warrants. At As soon as reasonably practicable after the Effective Time, but no later than two Business Days after the Effective Time, the holder Paying Agent shall mail to each Person who held Company Warrants as of each Common Share Warrant and Series B Share Warrant (each as defined in Section 4.03) shall be entitled to receive, and shall, upon surrender of such Warrant to Purchaser for cancellation, receive, in settlement and cancellation thereof, an amount of cash equal to the product of (x) the excess, if any, of the aggregate amount which the holder of such Warrant would be entitled to receive pursuant to Section 3.06 in respect of the Shares or Series B Shares issuable upon exercise of such Warrant if such Warrant were exercised immediately prior to the Effective Time with respect to all Shares or Series B Shares remaining to (i) a letter of transmittal in customary form (which will specify that delivery will be exercised thereunder over the aggregate exercise price of each such Warrant with respect to all Shares or Series B Shares remaining to be exercised thereundereffected, and risk of loss and title to any Company Warrant will pass, only upon receipt of the agreement representing such Company Warrant by the Paying Agent) and (yii) instructions for use in effecting the number surrender of Shares or Series B Shares, as Company Warrants held by such Person in exchange for the case may be, remaining payment required to be exercised under such Warrant, which payment shall be made to each such Warrant holder as Person pursuant to Section 2.5.4(a) (in the case of Series B1 Preferred Warrants) or Section 2.5.4(b) (in the case of Common Stock Warrants). As soon as practicable reasonably practicable, but no later than five Business Days after receipt by the Paying Agent of any such agreement representing a Company Warrant, together with such duly executed letter of transmittal and any other documents as may be reasonably requested by the Paying Agent, the Paying Agent will, in exchange therefor, pay to the holder thereof (by wire transfer of immediately available funds (without additional charge) if such holder provides valid wire instructions for such purpose) the payment required to be made to such Person pursuant to Section 2.5.4(a) (in the case of Series B1 Preferred Warrants) or Section 2.5.4(b) (in the case of Common Stock Warrants), in each case payable in cash to the holder thereof without interest and subject to applicable Tax withholding. If payment of any portion of such consideration is to be made to a Person other than the Person in whose name the Company Warrant is registered, it will be a condition of payment that the Person requesting such payment (A) will have paid any Taxes required by reason of the payment of those amounts to a Person other than the registered holder of the Company Warrant surrendered, and will have established to the satisfaction of the Buyer that such Taxes have been paid, or (B) will have established to the satisfaction of the Buyer that such Taxes are not applicable. From and after the Effective Time. The Company shall take all necessary action to effect the disposition of the Common Share Warrants and the Series B Share Warrants , until surrendered as contemplated by this Section 3.08. Upon surrender of such Warrants by 2.8.2(b), each Company Warrant will be deemed to represent for all purposes only the holders thereof, any Common Share Warrant or Series B Warrant not surrendered for cancellation as provided above shall survive right to receive the Merger and shall become a warrant to receive, upon payment of the exercise price provided for therein, an amount of cash based on the Per Share Amount (plus, in the case of the Series B Warrants, the liquidation preference applicable consideration set forth in the Certificate this Article 2, if any, in respect of Designation) such Company Warrant in accordance with the merger adjustment provisions of each such Warrantterms hereof and in the manner provided herein.

Company Warrants. At (a) Upon the Effective TimeClosing, (i) the holder of Company shall purchase each Common Share 2015 Company Warrant and Series B Share Warrant the holders thereof shall be entitled to receive from the Company an amount in cash equal to the “Black Scholes Value” (each as defined in Section 4.03the warrant agreement relating to the 2015 Company Warrants and calculated pursuant to the terms thereof) of each such 2015 Company Warrant plus any all other amounts payable to the holders in accordance with the terms thereof, which amount shall be paid by the Company as soon as practicable, but in any event no later than ten days following the Closing and (ii) each Other Company Warrant shall, by virtue of the Merger, be immediately canceled and the holder thereof shall be entitled to receive, and shall, upon surrender in consideration of such Warrant to Purchaser for cancellation, receive, in settlement and cancellation thereofcancelation, an amount of cash equal to (the product of (x“Other Company Warrant Consideration”) the excess, if any, of the aggregate amount which the holder of such Warrant would be entitled to receive pursuant to Section 3.06 in respect of the Shares or Series B Shares issuable upon exercise each share of Company Common Stock for which such Other Company Warrant if such Warrant were exercised is exercisable immediately prior to the Effective Time Closing equal to (1) the Offer Price minus (2) the applicable exercise price per share of such Other Company Warrant; provided that if the exercise price of such Other Company Warrant equals or exceeds the Offer Price, the Other Company Warrant Consideration with respect to all Shares or Series B Shares remaining to be exercised thereunder over the aggregate exercise price of each such Other Company Warrant with respect to all Shares or Series B Shares remaining to be exercised thereunder, and (y) the number of Shares or Series B Shares, as the case may be, remaining to be exercised under such Warrant, which payment shall be made zero. Following the Closing, no holder of any Company Warrant shall have any right hereunder or thereunder to each such Warrant holder as soon as practicable after the Effective Time. The acquire any Company shall take all necessary action to effect the disposition of the Common Share Warrants and the Series B Share Warrants as contemplated by this Section 3.08. Upon surrender of such Warrants by the holders thereofSecurities, any Common Share Warrant Company Subsidiary Securities, or Series B Warrant not surrendered for cancellation as provided above shall survive the Merger and shall become a warrant to receive, upon payment of the exercise price provided for therein, an amount of cash based on the Per Share Amount (plus, any securities in the case Surviving Corporation, Parent or any of the Series B Warrants, the liquidation preference set forth in the Certificate of Designation) in accordance with the merger adjustment provisions of each such Warranttheir respective Affiliates.

Company Warrants. At Each Company Warrant, whether vested or unvested, shall, without any further action on the part of any holder thereof, be cancelled and extinguished and shall not be assumed by Parent in the Merger. In exchange therefor (1) each former holder of Series G Warrants that has executed and delivered a Warrant Cancellation Agreement, in substantially the form attached as Exhibit H hereto, to the Company prior to the Effective Time, the holder of each Common Share Warrant and Series B Share Warrant (each as defined in Section 4.03) Time shall be entitled to receive, receive (without interest and shall, upon surrender of such Warrant subject to Purchaser for cancellation, receive, in settlement and cancellation thereof, applicable Tax withholding pursuant to Section 1.9) an amount of cash equal to the product of to: (x) the excessamount, if any, by which the aggregate of the aggregate amount which Per Share Series G Preference Consideration and the holder Per Share Participating Consideration exceeds the Series G Warrant Strike Price, multiplied by (y) the number of shares of Series G Preferred Stock subject to such Series G Warrant would be entitled to receive pursuant to Section 3.06 in respect as of the Shares or Series B Shares issuable upon exercise of such Warrant if such Warrant were exercised immediately prior to the Effective Time with respect and (2) each former holder of Common Warrants that has executed and delivered a Warrant Cancellation Agreement, in substantially the form attached as Exhibit H hereto, to all Shares or Series B Shares remaining the Company prior to the Effective Time shall be exercised thereunder over entitled to receive (without interest and subject to applicable Tax withholding pursuant to Section 1.9) an amount equal to: (x) the aggregate exercise price of each such amount, if any, by which the Per Share Participating Consideration exceeds the Common Warrant with respect to all Shares or Series B Shares remaining to be exercised thereunderStrike Price, and multiplied by (y) the number of Shares or Series B Shares, shares of Company Common Stock subject to such Common Warrant as the case may be, remaining of immediately prior to be exercised under such Warrant, which payment shall be made to each such Warrant holder as soon as practicable after the Effective Time. The Company shall take all necessary action to effect the disposition of the Common Share Warrants and the Series B Share Warrants as contemplated by this Section 3.08. Upon surrender of such Warrants by the holders thereof, any Common Share Warrant or Series B Warrant not surrendered for cancellation as provided above shall survive the Merger and shall become a warrant to receive, upon payment of the exercise price provided for therein, an amount of cash based on the Per Share Amount (plus, in the case of the Series B Warrants, the liquidation preference set forth in the Certificate of Designation) in accordance with the merger adjustment provisions of each such Warrant.

Company Warrants. At Subject to the terms and conditions of this Agreement, at the Effective Time, each Company Warrant that is issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger and without the need for any further action on the part of the holder of each Common Share Warrant thereof (except as expressly provided herein), be converted into and Series B Share Warrant (each as defined in Section 4.03) shall be entitled represent the right to receive, and shall, upon surrender of such Warrant to Purchaser for cancellation, receive, in settlement and cancellation thereof, receive an amount of cash cash, without interest, equal to the product of (x) the excess, if any, of the aggregate amount which the holder of such Warrant would be entitled to receive pursuant to Section 3.06 in respect of the Shares or Series B Shares issuable upon exercise of such Warrant if such Warrant were exercised immediately prior to the Effective Time with respect to all Shares or Series B Shares remaining to be exercised thereunder over the aggregate exercise price of each such Warrant with respect to all Shares or Series B Shares remaining to be exercised thereunder, and (yA) the number of Shares shares of Company Capital Stock subject to such Company Warrant multiplied by (B) ((1) the General Conversion Number (in the case of Company Warrants exercisable for Company Common Stock), (2) the Series C Conversion Number (in the case of Company Warrants other than Company Series C Repurchase Warrants exercisable for Company Series C Stock), or (3) the Series B SharesC Repurchase Warrant Conversion Number (in the case of Company Series C Repurchase Warrants), as applicable, less the case may beexercise price per share attributable to such Company Warrant (provided, remaining to be exercised under no deduction for such Warrant, which payment exercise price shall be made for Company Series C Repurchase Warrants)); provided, however, that the Surviving Corporation and Acquiror shall be entitled to each deduct and withhold from such payment made to the holder of a Company Warrant holder the amount of withholding for taxes required to be deducted and withheld as soon as practicable after the Effective Time. The Company shall take all necessary action to effect the disposition a result of the Common Share Warrants and the Series B Share Warrants as transactions contemplated by this Section 3.082.1(b)(v). Upon surrender of such Warrants by the holders thereof, any Common Share Warrant or Series B Warrant not surrendered for cancellation as provided above shall survive the Merger and shall become a warrant to receive, upon payment of the exercise price provided for therein, an The amount of cash based on each Company Warrantholder is entitled to receive for the Per Share Amount (plus, in Company Warrants held by such Company Warrantholder shall be rounded to the case of the Series B Warrants, the liquidation preference set forth in the Certificate of Designation) in accordance with the merger adjustment nearest cent and computed after aggregating cash amounts for all Company Warrants held by such Company Warrantholder. The preceding provisions of each such Warrantthis Section 2.1(b)(v) are subject to the provisions of Section 2.3 (regarding the withholding of Escrow Cash).

Company Warrants. The Company will obtain from each Warrant Holder, promptly after the date of this Agreement, a surrender agreement in the form of Exhibit 2.12(b) (the “Warrant Surrender Agreement”) duly executed and delivered by such Warrant Holder (which agreement may be conditioned upon shareholder approval and the consummation of the Merger). Notwithstanding the foregoing, in the event that the Company does not so obtain from each Warrant Holder a Warrant Surrender Agreement and either (i) the Parent and/or the Purchaser specifically waive their rights under this Section 2.12 or (ii), even in the absence of such specific waiver, the Closing is consummated, Parent and Purchaser shall have no claim under this Agreement, including, without limitation, the indemnification provisions in Article 10 or any other legal theory in connection with the failure to obtain such Warrant Surrender Agreement. At the Effective Time, each then outstanding Company In-the-Money Warrant shall be canceled and shall represent the right to receive the Warrant Consideration payable as set forth below and in accordance with Section 2.13, less any required withholding taxes. No outstanding Company In-the-Money Warrant, the holder of each Common Share which has not duly executed and delivered to the Parent or Surviving Corporation a Warrant and Series B Share Warrant (each as defined Surrender Agreement in accordance with this Section 4.03) shall 2.12 hereof, will be entitled to receivereceive any portion of the Warrant Consideration until such holder duly executes and delivers to the Surviving Corporation a Warrant Surrender Agreement; at which time each then outstanding Company In-the-Money Warrant held by such holder shall be canceled, net to the holder of any deductions set forth herein, payable to the holder thereof as set forth herein, without any interest thereon, less any required withholding taxes. The Warrant Consideration shall be paid as follows to each Warrant Holder: (i) at the Effective Time, an amount in cash equal to the Per Share Warrant Consideration multiplied by the Cash Percentage (the aggregate amount of such payments referred to herein as the “Warrant Holder Cash Allocation”); (ii) at the Effective Time, (1) a number of shares of USI Common Stock with a value based on the Parent Stock Valuation equal to the Per Share Warrant Consideration multiplied by the Stock Percentage (the aggregate amount of such payments referred to herein as the “Warrant Holder Stock Allocation”), and shall, upon surrender (2) an amount of Note Payment rights in the Warrant Holder Note equal to the Initial Warrant Note Payment (the aggregate amount of such payments referred to herein as the “Warrant Holder Note Allocation”) and (iii) subsequent to Purchaser for cancellation, receivethe Effective Time, in settlement and cancellation thereofaccordance with Section 2.9(d), an amount of cash Note Payment Rights in the Warrant Holder Escrow Note equal to the product of Subsequent Warrant Payment (x) the excess, if any, of the aggregate amount which the holder of such Warrant would be entitled payments referred to receive pursuant to Section 3.06 in respect of the Shares or Series B Shares issuable upon exercise of such Warrant if such Warrant were exercised immediately prior to the Effective Time with respect to all Shares or Series B Shares remaining to be exercised thereunder over the aggregate exercise price of each such Warrant with respect to all Shares or Series B Shares remaining to be exercised thereunder, and (y) the number of Shares or Series B Shares, herein as the case may be, remaining to be exercised under such Warrant, which payment shall be made to each such “Warrant holder as soon as practicable after the Effective Time. The Company shall take all necessary action to effect the disposition of the Common Share Warrants and the Series B Share Warrants as contemplated by this Section 3.08. Upon surrender of such Warrants by the holders thereof, any Common Share Warrant or Series B Warrant not surrendered for cancellation as provided above shall survive the Merger and shall become a warrant to receive, upon payment of the exercise price provided for therein, an amount of cash based on the Per Share Amount (plus, in the case of the Series B Warrants, the liquidation preference set forth in the Certificate of Designation) in accordance with the merger adjustment provisions of each such WarrantHolder Escrow Note Allocation”).

Company Warrants. At Neither Parent nor any of its Affiliates (including the Surviving Corporation) shall assume or otherwise replace a Company Warrant in connection with the Merger or the other Transactions. Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time, by virtue of the Merger, and without any action on the part of Parent, Merger Sub, the Company, or the holders of Company Warrants (each such holder as of immediately prior to the Closing, a “Company Warrantholder”), each Company Warrant that is outstanding immediately prior to the Effective Time shall be deemed cancelled and shall convert into the right to receive an amount in cash equal to, in respect of each Common Share Warrant and Series B Share Warrant (each as defined in Section 4.03) shall be entitled to receiveCompany Warrant, and shall, upon surrender of such Warrant to Purchaser for cancellation, receive, in settlement and cancellation thereof, an amount of cash equal to the product of (x) the excess, if any, of the aggregate amount which the holder of such Warrant would be entitled to receive pursuant to Section 3.06 in respect of the Shares or Series B Shares issuable upon exercise of such Warrant if such Warrant were exercised immediately prior to the Effective Time with respect to all Shares or Series B Shares remaining to be exercised thereunder Per Share Common Consideration, without interest, over the aggregate per share exercise price of each such Company Warrant with respect to all Shares or Series B Shares remaining to be exercised thereunder, and (y) the number of Shares or Series B Sharesshares of Company Common Stock into which such Company Warrant is convertible pursuant to the terms of its governing documents, as of immediately prior to the case may beEffective Time, remaining and subject to the withholdings and adjustments set forth in Section 1.4 and Section 1.5 (“Warrant Consideration”). Company Warrants with a per share exercise price greater than or equal to the Per Share Common Consideration (“Out-of-the-Money Warrants”), shall be cancelled without consideration. The payment of the Warrant Consideration to any holder of Company Warrants shall be paid at such time(s) provided in this Agreement to the Payment Agent for further payment to the Company Warrantholders that would receive consideration under this Section 1.3(d). For purposes of calculating the aggregate amount of consideration payable in respect of a Company Warrant pursuant to this Section 1.3(d), (x) all shares of Company Capital Stock issuable upon the exercise in full of the Company Warrants held by each holder of Company Warrants shall be aggregated and (y) the amount of cash to be exercised under such Warrant, which payment shall be made paid to each such Warrant holder as soon as practicable after of Company Warrants shall be rounded down to the Effective Timenearest whole cent. The Company shall shall, promptly after the date hereof and prior to the Closing, take or cause to be taken all actions that are required under any Company Warrant, or are otherwise reasonably necessary action or appropriate to effect cause the disposition of the Common Share Company Warrants and the Series B Share Warrants as contemplated by this Section 3.08. Upon surrender of such Warrants by the holders thereof, any Common Share Warrant or Series B Warrant not surrendered for cancellation as provided above shall survive the Merger and shall become a warrant to receive, upon payment of the exercise price provided for therein, an amount of cash based on the Per Share Amount (plus, in the case of the Series B Warrants, the liquidation preference set forth in the Certificate of Designation) be treated in accordance with the merger adjustment provisions of each such Warrantthis Section 1.3(d).