Exercise and Delivery of Warrants. (a) The Warrants will be automatically exercised on the earlier of (i) the fifth scheduled Business Day (or if such day is not a Business Day, the immediately succeeding Business Day) immediately preceding the Expiration Date, or (ii) the Business Day immediately prior to the occurrence of certain events in bankruptcy, insolvency or reorganization involving the Company as are set forth in Section 2.02(e) (any such day being the “Exercise Date”). (b) On the date of such automatic exercise, the Warrant Agent shall be informed of the Cash Settlement Amount, if any, from the Calculation Agent (as defined below), advise the Company of the aggregate Cash Settlement Amount (as defined below), if any, and advise the Company of such other matters relating to the Warrants as the Company shall reasonably request in writing. Any notice to be given to the Company by the Warrant Agent pursuant to this Section 2.02 shall be by telephone and shall promptly be confirmed in writing. Any notice to be given by the Calculation Agent to the Warrant Agent pursuant to this Section 2.02 shall be by facsimile transmission to the address of the Warrant Agent set forth in Section 6.03 or by such other means as is acceptable to the Warrant Agent. (c) The Company shall make available to the Warrant Agent, no later than 10:00 A.M., New York City time, on the Expiration Date, or if August 29, 2005 is not a Business Day, on the next succeeding Business Day (the “Settlement Date”) funds in an amount sufficient to pay such aggregate Cash Settlement Amount. Provided that the Company has made adequate funds available to the Warrant Agent in such manner, the Warrant Agent shall make payment to the Depositary, after 10:00 A.M., New York City time, but prior to the close of business, on such Settlement Date. Any such payment shall be in the amount of the aggregate Cash Settlement Amount, and in the case of Warrants in definitive form, the aggregate Cash Settlement Amount in respect of exercised Warrants for which delivery has been accepted by the Warrant Agent. (d) The “Cash Settlement Amount” is an amount equal to the greater of: (i) zero, or (ii) U.S.$100 × (Ending Value - Starting Value) The “Ending Value” will be determined by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“MLPF&S”) or any successor thereto, as the Calculation Agent (the “Calculation Agent”), and will equal the value of the CMT Yield, as determined in accordance with the provisions of Section 2.01, on the Exercise Date. The “Starting Value” equals 4.54%. In no event will the Cash Settlement Amount be less than zero. The Cash Settlement Amount will be rounded, if necessary, to the nearest cent, with one-half cent being rounded upwards. All determinations made by the Calculation Agent shall be at the sole discretion of the Calculation Agent and, absent a manifest error, shall be conclusive for all purposes and binding on the Company and the beneficial owners of the Warrants. (e) The Warrants will expire on the date that either of the following events occur, as referenced in subsection (a) of this Section, and the Warrants will be automatically exercised on the Business Day immediately preceding such date: (i) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereinafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (ii) the Company commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereinafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property, or shall make any general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due or shall take any corporate action in furtherance of any of the foregoing. (f) Upon the occurrence of any of the events described in subsection (e) above, the Cash Settlement Amount, if any, shall be determined by the Calculation Agent pursuant to Section 2.02(d), provided, however, that if the CMT Yield cannot be determined on the Exercise Date in accordance with procedures of subsections (a), (b) or (c) of Section 2.01, then the CMT Yield will be equal to the yield, determined in the reasonable judgment of the Calculation Agent, that is representative of the yield for United States Treasury Securities at “constant maturity” having a ten year maturity . (g) The Warrant Agent shall, as soon as practicable after the Exercise Date determined pursuant to subsection (e) above, be informed of the Cash Settlement Amount, if any, from the Calculation Agent, advise the Company of the Cash Settlement Amount, if any, and advise the Company of such other matters relating to the Warrants as the Company shall reasonably request in writing. Provided that the Company has made the adequate funds available to the Warrant Agent in a timely manner which shall, in no event, be later than 10:00 A.M., New York City time, on the fifth Business Day following the Exercise Date determined in accordance with subsection (e) of this Section, the Warrant Agent will make its payment available to the Depositary against receipt by the Warrant Agent from the Depositary of the Global Warrant Certificate on the fifth Business Day following such Exercise Date, such payment to be in the amount of the aggregate Cash Settlement Amount in respect of the number of Warrants evidenced by the Global Warrant Certificate at the close of business on such Exercise Date. The Warrant Agent shall promptly cancel the Global Warrant Certificate following its receipt thereof from the Depositary.
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Exercise and Delivery of Warrants. (a) The Warrants will be automatically exercised on the earlier of (i) the fifth scheduled Business Day (or if such day is not a Business Day, the immediately succeeding Business Day) immediately preceding the Expiration Date, or (ii) the Business Day immediately prior to the occurrence of certain events in bankruptcy, insolvency or reorganization involving the Company as are set forth in Section 2.02(e) (any such day being the “Exercise Date”).
(b) On the date of such automatic exercise, the Warrant Agent shall be informed of the Cash Settlement Amount, if any, from the Calculation Agent (as defined below), advise the Company of the aggregate Cash Settlement Amount (as defined below), if any, and advise the Company of such other matters relating to the Warrants as the Company shall reasonably request in writing. Any notice to be given to the Company by the Warrant Agent pursuant to this Section 2.02 shall be by telephone and shall promptly be confirmed in writing. Any notice to be given by the Calculation Agent to the Warrant Agent pursuant to this Section 2.02 shall be by facsimile transmission to the address of the Warrant Agent set forth in Section 6.03 or by such other means as is acceptable to the Warrant Agent.
(c) The Company shall make available to the Warrant Agent, no later than 10:00 A.M., New York City time, on the Expiration Date, or if August 29June 3, 2005 is not a Business Day, on the next succeeding Business Day (the “Settlement Date”) funds in an amount sufficient to pay such aggregate Cash Settlement Amount. Provided that the Company has made adequate funds available to the Warrant Agent in such manner, the Warrant Agent shall make payment to the Depositary, after 10:00 A.M., New York City time, but prior to the close of business, on such Settlement Date. Any such payment shall be in the amount of the aggregate Cash Settlement Amount, and in the case of Warrants in definitive form, the aggregate Cash Settlement Amount in respect of exercised Warrants for which delivery has been accepted by the Warrant Agent.
(d) The “Cash Settlement Amount” is an amount equal to the greater of:
(i) zero, or
(ii) U.S.$100 × U.S. $100 x (Ending Value - Starting Value) The “Ending Value” will be determined by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“MLPF&S”) or any successor thereto, as the Calculation Agent (the “Calculation Agent”), and will equal the value of the CMT Yield, as determined in accordance with the provisions of Section 2.01, on the Exercise Date. The “Starting Value” equals 4.542.19%. In no event will the Cash Settlement Amount be less than zero. The Cash Settlement Amount will be rounded, if necessary, to the nearest cent, with one-half cent being rounded upwards. All determinations made by the Calculation Agent shall be at the sole discretion of the Calculation Agent and, absent a manifest error, shall be conclusive for all purposes and binding on the Company and the beneficial owners of the Warrants.
(e) The Warrants will expire on the date that either of the following events occur, as referenced in subsection (a) of this Section, and the Warrants will be automatically exercised on the Business Day immediately preceding such date:
(i) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereinafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) the Company commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereinafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property, or shall make any general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due or shall take any corporate action in furtherance of any of the foregoing.
(f) Upon the occurrence of any of the events described in subsection (e) above, the Cash Settlement Amount, if any, shall be determined by the Calculation Agent pursuant to Section 2.02(d), provided, however, that if the CMT Yield cannot be determined on the Exercise Date in accordance with procedures of subsections (a), (b) or (c) of Section 2.01, then the CMT Yield will be equal to the yield, determined in the reasonable judgment of the Calculation Agent, that is representative of the yield for United States Treasury Securities at “constant maturity” having a ten five year maturity .
(g) The Warrant Agent shall, as soon as practicable after the Exercise Date determined pursuant to subsection (e) above, be informed of the Cash Settlement Amount, if any, from the Calculation Agent, advise the Company of the Cash Settlement Amount, if any, and advise the Company of such other matters relating to the Warrants as the Company shall reasonably request in writing. Provided that the Company has made the adequate funds available to the Warrant Agent in a timely manner which shall, in no event, be later than 10:00 A.M., New York City time, on the fifth Business Day following the Exercise Date determined in accordance with subsection (e) of this Section, the Warrant Agent will make its payment available to the Depositary against receipt by the Warrant Agent from the Depositary of the Global Warrant Certificate on the fifth Business Day following such Exercise Date, such payment to be in the amount of the aggregate Cash Settlement Amount in respect of the number of Warrants evidenced by the Global Warrant Certificate at the close of business on such Exercise Date. The Warrant Agent shall promptly cancel the Global Warrant Certificate following its receipt thereof from the Depositary.
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Exercise and Delivery of Warrants. (a) The Warrants will be automatically exercised on the earlier of (i) the fifth scheduled Index Business Day immediately preceding the Expiration Date (or if such day is not a an Index Business Day, the immediately succeeding Index Business Day) immediately preceding ; if no Index Business Day occurs prior to the second scheduled Index Business Day prior to the Expiration Date, such second scheduled Index Business Day regardless of whether a Market Disruption Event occurs on such date), or (ii) the Index Business Day immediately prior to the occurrence of certain events in bankruptcy, insolvency or reorganization involving the Company as are set forth in Section 2.02(e) (any such day being the “Exercise Date”).
(b) On the date of such automatic exercise, the Warrant Agent shall be informed of the Cash Settlement AmountAmount (as defined below), if any, from the Calculation Agent (as defined below)Agent, advise the Company of the aggregate Cash Settlement Amount (as defined below)Amount, if any, and advise the Company of such other matters relating to the Warrants as the Company shall reasonably request in writing. Any notice to be given to the Company by the Warrant Agent pursuant to this Section 2.02 shall be by telephone and shall promptly be confirmed in writing. Any notice to be given by the Calculation Agent to the Warrant Agent pursuant to this Section 2.02 shall be by facsimile transmission to the address of the Warrant Agent set forth in Section 6.03 or by such other means as is acceptable to the Warrant Agent.
(c) The Company shall make available to the Warrant Agent, no later than 10:00 A.M., New York City time, on the Expiration Date, or if August 29January 19, 2005 2007 is not a Business Day, on the next succeeding Business Day (the “Settlement Date”) funds in an amount sufficient to pay such aggregate Cash Settlement Amount. Provided that the Company has made adequate funds available to the Warrant Agent in such manner, the Warrant Agent shall make payment to the Depositary, after 10:00 A.M., New York City time, but prior to the close of business, on such Settlement Date. Any such payment shall be in the amount of the aggregate Cash Settlement Amount, and in the case of Warrants in definitive form, the aggregate Cash Settlement Amount in respect of exercised Warrants for which delivery has been accepted by the Warrant Agent.
(d) The “Cash Settlement Amount” is an amount equal to the greater of:
(i) zero, or
(ii) U.S.$100 U.S.$25 × (( Ending Value - – Starting ValueValue ) The “Ending Value” will be determined by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“MLPF&S”) or any successor thereto, as the Calculation Agent (the “Calculation Agent”), and will equal the closing value of the CMT YieldIndex, as determined in accordance with the provisions of Section 2.01, on the Exercise Date. The “Starting Value” equals 4.54%10310.04. In no event will the Cash Settlement Amount be less than zero. The Cash Settlement Amount will be rounded, if necessary, to the nearest cent, with one-half cent being rounded upwards. All determinations made by the Calculation Agent shall be at the sole discretion of the Calculation Agent and, absent a manifest error, shall be conclusive for all purposes and binding on the Company and the beneficial owners of the Warrants.
(e) The Warrants will expire on the date that either of the following events occur, as referenced in subsection (a) of this Section, and the Warrants will be automatically exercised on the Index Business Day immediately preceding such date:
(i) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereinafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) the Company commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereinafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property, or shall make any general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due or shall take any corporate action in furtherance of any of the foregoing.
(f) Upon the occurrence of any of the events described in subsection (e) above, the Cash Settlement Amount, if any, shall be determined by the Calculation Agent pursuant to Section 2.02(d), provided, however, that if the CMT Yield cannot be determined on the Exercise Date in accordance with procedures of subsections (a), (b) or (c) of Section 2.01, then the CMT Yield will be equal to the yield, determined in the reasonable judgment of the Calculation Agent, that is representative of the yield for United States Treasury Securities at “constant maturity” having a ten year maturity .
(g) The Warrant Agent shall, as soon as practicable after the Exercise Date determined pursuant to subsection (e) above, be informed of the Cash Settlement Amount, if any, from the Calculation Agent, advise the Company of the Cash Settlement Amount, if any, and advise the Company of such other matters relating to the Warrants as the Company shall reasonably request in writing. Provided that the Company has made the adequate funds available to the Warrant Agent in a timely manner which shall, in no event, be later than 10:00 A.M., New York City time, on the fifth Business Day following the Exercise Date determined in accordance with subsection (e) of this Section, the Warrant Agent will make its payment available to the Depositary against receipt by the Warrant Agent from the Depositary of the Global Warrant Certificate on the fifth Business Day following such Exercise Date, such payment to be in the amount of the aggregate Cash Settlement Amount in respect of the number of Warrants evidenced by the Global Warrant Certificate at the close of business on such Exercise Date. The Warrant Agent shall promptly cancel the Global Warrant Certificate following its receipt thereof from the Depositary.
Appears in 1 contract
Exercise and Delivery of Warrants. (a) The Warrants will be automatically exercised on the earlier of (i) the fifth seventh scheduled Business Day (the scheduled “Exercise Date”) immediately preceding the scheduled Expiration Date (or if such day the scheduled Exercise Date is not a Business Day, the immediately succeeding Business Day) immediately preceding Day shall be the Exercise Date; if no Business Day occurs prior to the second scheduled Business Day prior to the Expiration Date, the Exercise Date will be such second scheduled Business Day prior to the Expiration Date regardless of whether such date is a Business Day), or (ii) the Business Day immediately prior to the occurrence of certain events in bankruptcy, insolvency or reorganization involving the Company as are set forth in Section 2.02(e) (any such day being the “Exercise Date”). In the case of (ii), the date of the occurrence of certain events in bankruptcy, insolvency or reorganization involving the Company as are set forth in Section 2.02(e) will be the Expiration Date.
(b) On the date of such automatic exercise, the Warrant Agent shall be informed of the Cash Settlement AmountAmount (as defined below), if any, from the Calculation Agent (as defined below)Agent, advise the Company of the aggregate Cash Settlement Amount (as defined below)Amount, if any, and advise the Company of such other matters relating to the Warrants as the Company shall reasonably request in writing. Any notice to be given to the Company by the Warrant Agent pursuant to this Section 2.02 shall be by telephone and shall promptly be confirmed in writing. Any notice to be given by the Calculation Agent to the Warrant Agent pursuant to this Section 2.02 shall be by facsimile transmission to the address of the Warrant Agent set forth in Section 6.03 or by such other means as is acceptable to the Warrant Agent.
(c) The Company shall make available to the Warrant Agent, no later than 10:00 A.M., New York City time, on the Expiration Date, or if August 29, 2005 the Expiration Date is not a Business Day, on the next succeeding Business Day (the “Settlement Date”) ), funds in an amount sufficient to pay such aggregate Cash Settlement Amount. Provided that the Company has made adequate funds available to the Warrant Agent in such manner, the Warrant Agent shall make payment to the Depositary, after 10:00 A.M., New York City time, but prior to the close of business, on such Settlement Date. Any such payment shall be in the amount of the aggregate Cash Settlement Amount, and in the case of Warrants in definitive form, the aggregate Cash Settlement Amount in respect of exercised Warrants for which delivery has been accepted by the Warrant Agent.
(d) The “Cash Settlement Amount” for each Warrant is an amount equal to the greater of:
(i) zero, or
or (ii) U.S.$100 × (U.S.$25 x ( Starting Value - Ending Value - Starting Value) The “Ending Value” will be determined by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Capital Services Inc. (“MLPF&SMLCS”) or any successor thereto, as the Calculation Agent (the “Calculation Agent”), and will equal the value of EUR/JPY Exchange Rate on the CMT YieldExercise Date, as determined in accordance with the provisions of Section 2.01, on the Exercise Date. The “Starting Value” equals 4.54%147.69. In no event will the Cash Settlement Amount be less than zero. The Cash Settlement Amount will be rounded, if necessary, to the nearest cent, with one-half cent being rounded upwards. All determinations made by the Calculation Agent shall be at the sole discretion of the Calculation Agent and, absent a manifest error, shall be conclusive for all purposes and binding on the Company and the beneficial owners of the Warrants.
(e) The Warrants will expire on the date that either of the following events occur, as referenced in subsection (a) of this Section, and the Warrants will be automatically exercised on the Business Day immediately preceding such date:
(i) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereinafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) the Company commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereinafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property, or shall make any general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due or shall take any corporate action in furtherance of any of the foregoing.
(f) Upon the occurrence of any of the events described in subsection (e) above, the Cash Settlement Amount, if any, shall be determined by the Calculation Agent pursuant to Section 2.02(d), provided, however, that if the CMT Yield cannot be determined on the Exercise Date in accordance with procedures of subsections (a), (b) or (c) of Section 2.01, then the CMT Yield will be equal to the yield, determined in the reasonable judgment of the Calculation Agent, that is representative of the yield for United States Treasury Securities at “constant maturity” having a ten year maturity .
(g) The Warrant Agent shall, as soon as practicable after the Exercise Date determined pursuant to subsection (e) above, be informed of the Cash Settlement Amount, if any, from the Calculation Agent, advise the Company of the Cash Settlement Amount, if any, and advise the Company of such other matters relating to the Warrants as the Company shall reasonably request in writing. Provided that the Company has made the adequate funds available to the Warrant Agent in a timely manner which shall, in no event, be later than 10:00 A.M., New York City time, on the fifth Business Day following the Exercise Date determined in accordance with subsection (e) of this Section, the Warrant Agent will make its payment available to the Depositary against receipt by the Warrant Agent from the Depositary of the Global Warrant Certificate on the fifth Business Day following such Exercise Date, such payment to be in the amount of the aggregate Cash Settlement Amount in respect of the number of Warrants evidenced by the Global Warrant Certificate at the close of business on such Exercise Date. The Warrant Agent shall promptly cancel the Global Warrant Certificate following its receipt thereof from the Depositary.
Appears in 1 contract
Exercise and Delivery of Warrants. (a) The Warrants warrants will be automatically exercised on the earlier of (i) the fifth fourth scheduled Business Day (or if such day is not a Business Day, the immediately succeeding Business Day) immediately preceding the Expiration Date (the "Exercise Date") or, or (ii) the Business Day immediately prior to preceding the occurrence Warrants' delisting or imposition of a permanent trading suspension on trading of the Warrants (the "Delisting Date") or if certain events in bankruptcy, insolvency or reorganization reorganization, as described herein, involving the Company as are set forth in Section 2.02(e) occur (any such day being the “Exercise "Early Expiration Date”").
(b) On the date of such automatic exercise, the Warrant Agent shall be informed of obtain the Cash Settlement Amount, if any, from the Calculation Agent (as defined below)Agent, advise the Company of the aggregate Cash Settlement Amount (as defined below)Amount, if any, of the Warrants and advise the Company of such other matters relating to the Warrants as the Company shall reasonably request in writingrequest. Any notice to be given to the Company by the Warrant Agent pursuant to this Section 2.02 or pursuant to Section 2.03 shall be by telephone and shall promptly be confirmed in writing. Any notice to be given by the Calculation Agent to the Warrant Agent pursuant to this Section 2.02 or pursuant to Section 2.03 shall be by facsimile transmission to the address of the Warrant Agent set forth in Section 6.03 or by such other means as is acceptable to the Warrant Agent6.03.
(c) The Company shall make available to the Warrant Agent, no later than 10:00 A.M.3:00 P.M., New York City time, on the Expiration Date, or if August 29February ____ , 2005 2002 is not a Business Day, on the next succeeding Business Day (the “"Settlement Date”") funds in an amount sufficient to pay such aggregate Cash Settlement Amount. Provided that the Company has made adequate funds available to the Warrant Agent in such manner, the Warrant Agent shall make payment by check to the Depositaryrelevant Depositary Participant, after 10:00 A.M.3:00 P.M., New York City time, but prior to the close of business, on such Settlement Date. Any such payment shall be in the amount of the aggregate Cash Settlement Amount, and in the case of Warrants in definitive form, the aggregate Cash Settlement Amount in respect of exercised Warrants for which delivery has been accepted by the Warrant Agent.
(d) The “Cash Settlement Amount” Amount of a warrant is an amount amount, if positive, equal to the greater of:
(i) zero, or
or Spot Value - Strike Value (ii) U.S.$100 × (Ending U.S. $50 X -------------------------- Strike Value - Starting The "Spot Value) The “Ending Value” " will be determined by Xxxxxxx LynchLynch , Pierce, Xxxxxx & Xxxxx Incorporated (“"MLPF&S”") or any successor thereto, as the Calculation Agent (the “"Calculation Agent”"), and will equal equal: the value bid rate of the CMT Yield, U.S. Dollar per Euro in the interbank market as determined in accordance with the provisions of Section 2.01, reported by Reuters Group PLC ("Reuters") on page FXFX at approximately 3:00 p.m. London time on the Exercise Date. The “Starting "Strike Value” " equals 4.54%. In no event will However, if the Cash Settlement Amount be less than zero. The Cash Settlement Amount USD/EUR Rate is not so quoted on the date of automatic exercise, then the Spot Value will be roundedthe exchange rate between Euro and U.S. Dollars, if necessary, to based upon the nearest cent, with one-half cent being rounded upwards. All determinations made noon buying rate in New York for cable transfers in foreign currencies as announced by the Calculation Agent shall Federal Reserve Bank of New York for customs purposes (the "Noon Buying Rate"). If the Noon Buying Rate is not announced on such date of automatic exercise, then the Spot Value will be calculated on the basis of the arithmetic mean of the applicable spot quotations received by the calculation agent at approximately 3:00 p.m. London time on the relevant date for the purchase or sale by the Reference Dealers (as defined herein) of the Reference Amount (as defined herein) for settlement two Business Days later. If fewer than two Reference Dealers provide such spot quotations, then the Spot Value will be calculated on the basis of the arithmetic mean of the applicable spot quotations received by the calculation agent at approximately 3:00 p.m. London time on the relevant date from three leading commercial banks in New York (selected in the sole discretion of the Calculation Agent andcalculation agent), absent a manifest error, shall be conclusive for all purposes and binding on the Company and the beneficial owners sale by such banks of the Warrants.
(e) The Warrants will expire on the date that either of the following events occur, as referenced in subsection (a) of this Section, and the Warrants will be automatically exercised on the Reference Amount for settlement two Business Day immediately preceding Days later. If these spot quotations are available from fewer than three such date:
(i) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereinafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) the Company commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereinafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property, or shall make any general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due or shall take any corporate action in furtherance of any of the foregoing.
(f) Upon the occurrence of any of the events described in subsection (e) above, the Cash Settlement Amount, if any, shall be determined by the Calculation Agent pursuant to Section 2.02(d), provided, however, that if the CMT Yield cannot be determined on the Exercise Date in accordance with procedures of subsections (a), (b) or (c) of Section 2.01banks, then the CMT Yield calculation agent, in its sole discretion, shall determine which spot rate is available and reasonable to be used. If no such spot quotation is available, then the Spot Value will be equal to the yield, determined in rate the reasonable judgment of the Calculation Agent, that is representative of the yield for United States Treasury Securities at “constant maturity” having a ten year maturity .
(g) The Warrant Agent shall, as soon as practicable after the Exercise Date determined pursuant to subsection (e) above, be informed of the Cash Settlement Amount, if any, from the Calculation Agent, advise the Company of the Cash Settlement Amount, if any, and advise the Company of such other matters relating to the Warrants as the Company shall reasonably request in writing. Provided that the Company has made the adequate funds available to the Warrant Agent in a timely manner which shallcalculation agent, in no eventits sole discretion, determines to be later than 10:00 A.M.fair and reasonable under the circumstances at approximately 3:00 p.m., New York City London time, on the fifth Business Day following the Exercise Date determined in accordance with subsection (e) of this Section, the Warrant Agent will make its payment available to the Depositary against receipt by the Warrant Agent from the Depositary of the Global Warrant Certificate on the fifth Business Day following such Exercise Date, such payment to be in the amount of the aggregate Cash Settlement Amount in respect of the number of Warrants evidenced by the Global Warrant Certificate at the close of business on such Exercise Date. The Warrant Agent shall promptly cancel the Global Warrant Certificate following its receipt thereof from the Depositaryrelevant date.
Appears in 1 contract
