Exercise of Warrants and Delivery of Warrant Shares. (a) A registered Holder may exercise the Warrants through a cashless exercise (a “Cashless Exercise”) pursuant to Section 4(b) below if, and only if, an effective registration statement is not then available for the issuance of the Warrant Shares. If an effective registration statement is available for the issuance of the Warrant Shares, a registered Holder may only exercise the Warrants through a cash exercise (a “Cash Exercise”). (b) The Holder may effect a Cashless Exercise by delivering a duly executed Form of Election to Purchase to the Company indicating that the Holder wishes to effect a Cashless Exercise, upon which the Company shall issue, or cause to be issued, to the Holder the number of Warrant Shares determined as follows: X = Y x (A-B)/A where: X = the number of Warrant Shares to be issued to the Holder; Y = the number of Warrant Shares with respect to which the Warrant Certificates are being exercised; A = the Market Price as of the Date of Exercise; and B = the Exercise Price. (c) At such times, and upon such representations and agreements, if applicable, upon delivery of a duly executed Form of Election to Purchase (with the Warrant Shares Exercise Log attached) to the Warrant Agent or the Company, as applicable, pursuant to the notice provision set forth in Section 13, and, in the case of a Cash Exercise, upon payment of the Exercise Price multiplied by the number of Warrant Shares that the Holder intends to purchase thereunder (which must be a whole number) in accordance with Section 9 (the “Aggregate Exercise Price”), the Company shall, within three Trading Days of the Date of Exercise, at the option of the Holder (i) to the extent that the Company’s transfer agent is participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program, cause its transfer agent to credit the aggregate Warrant Shares issuable upon such exercise to the Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian System, or (ii) if the transfer agent is not participating in the DTC Fast Automated Securities Transfer Program, issue and deliver to the Holder, or at the Holder’s instruction pursuant to the Form of Election to Purchase, the Holder’s agent or designee, in each case pursuant to this clause (ii), sent by reputable overnight courier to the address specified in the applicable Form of Election to Purchase, a certificate, registered in the Company’s share register in the name of the Holder or its designee (as indicated in the applicable Form of Election to Purchase), for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise. Upon delivery of a duly executed Form of Election to Purchase as set forth above, the Holder, or any Person so designated by the Holder to receive Warrant Shares, shall be deemed to have become holder of record of such Warrant Shares as of the Date of Exercise of the relevant Warrant Certificate, irrespective of the date such Warrant Shares are credited to the Holder’s DTC account or the date of delivery of the certificates evidencing such Warrant Shares (as the case may be). For so long as there is a then effective registration statement covering the issuance of the Warrant Shares or if a Holder effects a Cashless Exercise, the Warrant Shares shall be issued free of all restrictive legends, and the Company shall, upon request of the Holder, if available, use commercially reasonable efforts to deliver Warrant Shares hereunder electronically through the Depository Trust Corporation or another established clearing corporation performing similar functions. If fewer than all Warrant Shares issuable upon exercise of the relevant Warrant Certificate are purchased on such Date of Exercise, then the Company will execute and deliver to the Holder or its assigns a New Warrant Certificate (dated the date thereof) evidencing the unexercised portion of the relevant Warrant Certificate. (d) A Holder shall not have the right to exercise any portion of the Warrants, pursuant to this Section 4 or otherwise, to the extent that after giving effect to the issuance of Warrant Shares or any other security otherwise deliverable pursuant to such exercise, as set forth on the applicable Form of Election to Purchase, such Holder (together with such Holder’s affiliates (as defined in Rule 13e-3 of the rules promulgated under the Exchange Act, an “Affiliate”), and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates), would have Beneficial Ownership (as defined below) of more than 19.999% of the number of outstanding shares of Common Stock or any other class of equity security (other than an exempted security) that is registered pursuant to Section 12 of the Exchange Act (a “Class”) (the “19.999% Ownership Limitation”). (e) Notwithstanding the provisions of subsection 4(d) above, during any period of time in which a Holder’s Beneficial Ownership of Common Stock or any other Class (excluding, for purposes of this calculation, the number of shares of Common Stock or any other Class issuable upon exercise of the Warrants and any other warrants issued contemporaneously with the Warrants) is less than 10%, a Holder shall not have the right to exercise any portion of the Warrants, pursuant to this Section 4 or otherwise, to the extent that after giving effect to the issuance of Warrant Shares or any other security otherwise deliverable pursuant to such exercise, as set forth on the applicable Form of Election to Purchase, such Holder (together with such Holder’s Affiliates and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates), would have Beneficial Ownership of more than 9.999% of the number of outstanding shares of Common Stock or any other Class (the “9.999% Ownership Limitation”). (f) Notwithstanding the provisions of subsections 4(d) and (e) above, during any period of time in which a Holder’s Beneficial Ownership of Common Stock or any other Class (excluding, for purposes of this calculation, the number of shares of Common Stock or any other Class issuable upon exercise of the Warrants and any other warrants issued contemporaneously with the Warrants) is less than 5%, a Holder shall not have the right to exercise any portion of the Warrants, pursuant to this Section 4 or otherwise, to the extent that after giving effect to the issuance of Warrant Shares or any other security otherwise deliverable pursuant to such exercise, as set forth on the applicable Form of Election to Purchase, such Holder (together with such Holder’s Affiliates and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates), would have Beneficial Ownership of more than 4.999% of the number of outstanding shares of Common Stock or any other Class (the “4.999% Ownership Limitation”). (g) For purposes of subsections 4(d) through (f) above, unless otherwise indicated, the number of shares of Common Stock or any other Class “Beneficially Owned” by a Holder and its Affiliates (and any other Persons acting as a group together with a Holder or any of such Holder’s Affiliates) shall include the number of shares of Common Stock or any other Class issuable upon exercise of the Warrants with respect to which such determination is being made, but shall exclude the number of shares of Common Stock or any other Class which would be issuable upon (i) exercise of the remaining, nonexercised portion of the Warrants beneficially owned by such Holder or any of its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates) and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company exercisable for or convertible into Common Stock or any other Class that are subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Holder or any of its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates). Except as set forth in the preceding sentence, for purposes of subsections 4(d) through (f), Beneficial Ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by each Holder that the Company is not representing to any Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and each Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that a limitation contained in subsections 4(d) through (f) applies, the determination of whether the Warrants owned by a Holder are exercisable (in relation to other securities owned by such Holder together with its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates)) and of which portion of the Warrants owned by such Holder is exercisable shall be in the sole discretion of such Holder, and the submission of a Form of Election to Purchase to the Warrant Agent or the Company, as applicable, shall be deemed to be such Holder’s determination of whether the Warrants owned by such Holder are exercisable (in relation to other securities owned by such Holder together with any of its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates)) and of which portion of such Warrants are exercisable, in each case subject to the 19.999% Ownership Limitation, 9.999% Ownership Limitation or 4.999% Ownership Limitation, as applicable, and neither the Company nor the Warrant Agent shall have any obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of subsections 4(d) through (f), in determining the number of outstanding shares of Common Stock or any other Class, a Holder may rely on the number of outstanding shares of Common Stock or any other Class as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company setting forth the number of shares of Common Stock or such other Class outstanding. Upon the written or oral request of a Holder, the Company shall, within three Trading Days, confirm orally and in writing to the Holder the number of shares of Common Stock or any other Class then outstanding. In any case, the number of outstanding shares of Common Stock or any other Class shall be determined after giving effect to the conversion or exercise of securities of the Company, including the Warrants, by the Holder or its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates) since the date as of which such number of outstanding shares of Common Stock or any other Class was reported. (h) A Holder, upon not less than 61 days’ prior notice to the Company, may increase either or both of the 4.999% Ownership Limitation and the 9.999% Ownership Limitation to any other percentage not in excess of the 19.999% Ownership Limitation. Any such increase will not be effective until the 61st day after such notice is delivered to the Company. A Holder may decrease either or both of the 4.999% Ownership Limitation and the 9.999% Ownership Limitation upon prior notice to the Company. (i) The provisions of subsections 4(d) through (h) shall be construed and implemented in a manner otherwise than in strict conformity with their terms in order to correct any portion thereof which may be defective or inconsistent with the intended beneficial ownership limitations therein contained or to make changes or supplements necessary or desirable to properly give effect to such limitations. The limitations contained in subsections 4(d) through (h) shall apply to a successor holder of the Warrants.
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Exercise of Warrants and Delivery of Warrant Shares. (a) A registered Holder may exercise the Warrants through if there is a cashless exercise (a “Cashless Exercise”) pursuant to Section 4(b) below if, and only if, an then effective registration statement is not then available for covering the issuance of the Warrant Shares. If an effective registration statement is available for the issuance of the Warrant SharesOtherwise, a registered Holder may only exercise the Warrants through a cash exercise (a “Cash Exercise”).
(b) The Holder may effect a Cashless Exercise after making customary representations requested by delivering a duly executed Form of Election to Purchase to the Company indicating that the Holder wishes regarding investment intent and accredited status, and agreeing to effect a Cashless Exercise, upon which customary transfer restrictions requested by the Company shall issue, or cause to be issued, to ensure compliance by the Holder the number of Warrant Shares determined as follows: X = Y x (A-B)/A where: X = the number of Warrant Shares to be issued to the Holder; Y = the number of Warrant Shares Company with respect to which the Warrant Certificates are being exercised; A = the Market Price as of the Date of Exercise; and B = the Exercise Price.
(c) applicable securities laws. At such times, and upon such representations and agreements, if applicable, upon surrender of a Warrant Certificate and delivery of a duly executed the Form of Election to Purchase (with the Warrant Shares Exercise Log attached) to the Warrant Agent or the Company, as applicable, pursuant to the Company at its address for notice provision set forth in Section 1316, and, in the case of a Cash Exercise, and upon payment of the Exercise Price multiplied by the number of Warrant Shares that the Holder intends to purchase thereunder (which must be a whole number) in accordance with Section 9 12 (the “Aggregate Exercise Price”), the Company shall, within three Trading Days of the Date of Exercise, at the option of shall promptly issue and deliver to the Holder (i) to a certificate for the extent that the Company’s transfer agent is participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program, cause its transfer agent to credit the aggregate Warrant Shares issuable upon such exercise to the Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian System, or (ii) if the transfer agent is not participating in the DTC Fast Automated Securities Transfer Program, issue and deliver to the Holder, or at the Holder’s instruction pursuant to the Form of Election to Purchase, the Holder’s agent or designee, in each case pursuant to this clause (ii), sent by reputable overnight courier to the address specified in the applicable Form of Election to Purchase, a certificate, registered in the Company’s share register in the name of the Holder or its designee (as indicated in the applicable Form of Election to Purchase), for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise. Upon delivery of a duly executed Form of Election to Purchase as set forth above, the Holder, or any Any Person so designated by the Holder to receive Warrant Shares, Shares shall be deemed to have become holder of record of such Warrant Shares as of the Date of Exercise of the relevant Warrant Certificate, irrespective of the date such Warrant Shares are credited to the Holder’s DTC account or the date of delivery of the certificates evidencing such Warrant Shares (as the case may be). For so long as there is a then effective registration statement covering the issuance of the Warrant Shares or if a Holder effects a Cashless ExerciseShares, the Warrant Shares shall be issued free of all restrictive legends, and the Company shall, upon request of the Holder, if available, use commercially reasonable efforts to deliver Warrant Shares hereunder electronically through the Depository Trust Corporation or another established clearing corporation performing similar functions. If there is not a then effective registration statement covering the issuance of the Warrant Shares, the Warrant Shares shall be issued in certificated form and include customary legends regarding transfer restrictions deemed appropriate by the Company. If fewer than all Warrant Shares issuable upon exercise of the relevant Warrant Certificate are purchased on such Date of Exercise, then the Company will execute and deliver to the Holder or its assigns a New Warrant Certificate (dated the date thereof) evidencing the unexercised portion of the relevant Warrant Certificate.
(d) A Holder shall not have the right to exercise any portion of the Warrants, pursuant to this Section 4 or otherwise, to the extent that after giving effect to the issuance of Warrant Shares or any other security otherwise deliverable pursuant to such exercise, as set forth on the applicable Form of Election to Purchase, such Holder (together with such Holder’s affiliates (as defined in Rule 13e-3 of the rules promulgated under the Exchange Act, an “Affiliate”), and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates), would have Beneficial Ownership (as defined below) of more than 19.999% of the number of outstanding shares of Common Stock or any other class of equity security (other than an exempted security) that is registered pursuant to Section 12 of the Exchange Act (a “Class”) (the “19.999% Ownership Limitation”).
(e) Notwithstanding the provisions of subsection 4(d) above, during any period of time in which a Holder’s Beneficial Ownership of Common Stock or any other Class (excluding, for purposes of this calculation, the number of shares of Common Stock or any other Class issuable upon exercise of the Warrants and any other warrants issued contemporaneously with the Warrants) is less than 10%, a Holder shall not have the right to exercise any portion of the Warrants, pursuant to this Section 4 or otherwise, to the extent that after giving effect to the issuance of Warrant Shares or any other security otherwise deliverable pursuant to such exercise, as set forth on the applicable Form of Election to Purchase, such Holder (together with such Holder’s Affiliates and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates), would have Beneficial Ownership of more than 9.999% of the number of outstanding shares of Common Stock or any other Class (the “9.999% Ownership Limitation”).
(f) Notwithstanding the provisions of subsections 4(d) and (e) above, during any period of time in which a Holder’s Beneficial Ownership of Common Stock or any other Class (excluding, for purposes of this calculation, the number of shares of Common Stock or any other Class issuable upon exercise of the Warrants and any other warrants issued contemporaneously with the Warrants) is less than 5%, a Holder shall not have the right to exercise any portion of the Warrants, pursuant to this Section 4 or otherwise, to the extent that after giving effect to the issuance of Warrant Shares or any other security otherwise deliverable pursuant to such exercise, as set forth on the applicable Form of Election to Purchase, such Holder (together with such Holder’s Affiliates and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates), would have Beneficial Ownership of more than 4.999% of the number of outstanding shares of Common Stock or any other Class (the “4.999% Ownership Limitation”).
(g) For purposes of subsections 4(d) through (f) above, unless otherwise indicated, the number of shares of Common Stock or any other Class “Beneficially Owned” by a Holder and its Affiliates (and any other Persons acting as a group together with a Holder or any of such Holder’s Affiliates) shall include the number of shares of Common Stock or any other Class issuable upon exercise of the Warrants with respect to which such determination is being made, but shall exclude the number of shares of Common Stock or any other Class which would be issuable upon (i) exercise of the remaining, nonexercised portion of the Warrants beneficially owned by such Holder or any of its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates) and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company exercisable for or convertible into Common Stock or any other Class that are subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Holder or any of its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates). Except as set forth in the preceding sentence, for purposes of subsections 4(d) through (f), Beneficial Ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by each Holder that the Company is not representing to any Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and each Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that a limitation contained in subsections 4(d) through (f) applies, the determination of whether the Warrants owned by a Holder are exercisable (in relation to other securities owned by such Holder together with its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates)) and of which portion of the Warrants owned by such Holder is exercisable shall be in the sole discretion of such Holder, and the submission of a Form of Election to Purchase to the Warrant Agent or the Company, as applicable, shall be deemed to be such Holder’s determination of whether the Warrants owned by such Holder are exercisable (in relation to other securities owned by such Holder together with any of its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates)) and of which portion of such Warrants are exercisable, in each case subject to the 19.999% Ownership Limitation, 9.999% Ownership Limitation or 4.999% Ownership Limitation, as applicable, and neither the Company nor the Warrant Agent shall have any obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of subsections 4(d) through (f), in determining the number of outstanding shares of Common Stock or any other Class, a Holder may rely on the number of outstanding shares of Common Stock or any other Class as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company setting forth the number of shares of Common Stock or such other Class outstanding. Upon the written or oral request of a Holder, the Company shall, within three Trading Days, confirm orally and in writing to the Holder the number of shares of Common Stock or any other Class then outstanding. In any case, the number of outstanding shares of Common Stock or any other Class shall be determined after giving effect to the conversion or exercise of securities of the Company, including the Warrants, by the Holder or its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates) since the date as of which such number of outstanding shares of Common Stock or any other Class was reported.
(h) A Holder, upon not less than 61 days’ prior notice to the Company, may increase either or both of the 4.999% Ownership Limitation and the 9.999% Ownership Limitation to any other percentage not in excess of the 19.999% Ownership Limitation. Any such increase will not be effective until the 61st day after such notice is delivered to the Company. A Holder may decrease either or both of the 4.999% Ownership Limitation and the 9.999% Ownership Limitation upon prior notice to the Company.
(i) The provisions of subsections 4(d) through (h) shall be construed and implemented in a manner otherwise than in strict conformity with their terms in order to correct any portion thereof which may be defective or inconsistent with the intended beneficial ownership limitations therein contained or to make changes or supplements necessary or desirable to properly give effect to such limitations. The limitations contained in subsections 4(d) through (h) shall apply to a successor holder of the Warrants.
Appears in 1 contract
Samples: Warrant Agreement (Microvision Inc)
Exercise of Warrants and Delivery of Warrant Shares. (a) A registered Holder may exercise the Warrants through for cash if there is a cashless exercise (a “Cashless Exercise”) pursuant to Section 4(b) below if, and only if, an then effective registration statement is not then available for Registration Statement covering the issuance of the Warrant Shares. If an At any time that a Registration Statement with respect to the Warrant Shares is not effective registration statement is and available for issuance and sale of such Warrant Shares to the issuance Holder, or such Holder’s valid assignee (but specifically excluding any time during which any suspension of the Warrant Sharessuch Registration Statement is in effect pursuant to Section 13), a registered Holder may only exercise the Warrants through a for cash exercise (a “Cash Exercise”).
(bor by Net Exercise pursuant to Section 7(b) The Holder may effect a Cashless Exercise by delivering a duly executed Form of Election to Purchase to the Company indicating below, provided that the Holder wishes to effect a Cashless Exercise, upon which makes customary representations requested by the Company shall issueregarding investment intent and accredited status, or cause and agrees to be issued, customary transfer restrictions requested by the Company to ensure compliance by the Holder the number of Warrant Shares determined as follows: X = Y x (A-B)/A where: X = the number of Warrant Shares to be issued to the Holder; Y = the number of Warrant Shares Company with respect to which the Warrant Certificates are being exercised; A = the Market Price as of the Date of Exercise; and B = the Exercise Price.
(c) applicable securities laws. At such times, and upon such representations and agreements, if applicable, upon surrender of a Warrant Certificate and delivery of a duly executed the Form of Election to Purchase (with the Warrant Shares Exercise Log attached) to the Warrant Agent or the Company, as applicable, pursuant to the at its address for notice provision set forth in Section 1317, and, in the case of a Cash Exercise, and upon payment of the Exercise Price multiplied by the number of Warrant Shares that the Holder intends to purchase thereunder (which must be a whole number) in accordance with Section 9 12 (the “Aggregate Exercise Price”)) either for cash or by Net Exercise pursuant to Section 7(b) below, the Company shall, within three Trading Days of the Date of Exercise, at the option of Warrant Agent shall promptly issue and deliver to the Holder (i) to a certificate for the extent that the Company’s transfer agent is participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program, cause its transfer agent to credit the aggregate Warrant Shares issuable upon such exercise to the Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian System, or (ii) if the transfer agent is not participating in the DTC Fast Automated Securities Transfer Program, issue and deliver to the Holder, or at the Holder’s instruction pursuant to the Form of Election to Purchase, the Holder’s agent or designee, in each case pursuant to this clause (ii), sent by reputable overnight courier to the address specified in the applicable Form of Election to Purchase, a certificate, registered in the Company’s share register in the name of the Holder or its designee (as indicated in the applicable Form of Election to Purchase), for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise. Upon delivery of a duly executed Form of Election to Purchase as set forth above, the Holder, or any Any Person so designated by the Holder to receive Warrant Shares, Shares shall be deemed to have become holder of record of such Warrant Shares as of the Date of Exercise of the relevant Warrant Certificate, irrespective of the date such Warrant Shares are credited to the Holder’s DTC account or the date of delivery of the certificates evidencing such Warrant Shares (as the case may be). For so long as there is a then effective registration statement Registration Statement covering the issuance of the Warrant Shares or if a Holder effects a Cashless ExerciseShares, the Warrant Shares shall be issued free of all restrictive legends, and the Company Warrant Agent shall, upon request of the Holder, if available, use commercially reasonable efforts to deliver Warrant Shares hereunder electronically through the Depository Trust Corporation or another established clearing corporation performing similar functions. If there is not a then effective Registration Statement covering the issuance of the Warrant Shares, the Warrant Shares shall be issued in certificated form and include customary legends regarding transfer restrictions deemed appropriate by the Company. If fewer than all Warrant Shares issuable upon exercise of the relevant Warrant Certificate are purchased on such Date of Exercise, then the Company Warrant Agent will execute and deliver to the Holder or its assigns a New Warrant Certificate (dated the date thereof) evidencing the unexercised portion of the relevant Warrant Certificate.
(db) A Holder shall not have the right to exercise At any portion of the Warrants, pursuant to this Section 4 or otherwise, time that a Registration Statement filed with respect to the extent that after giving effect Warrant Shares is not effective and available for issuance and sale of such Warrant Shares to the issuance of Warrant Shares Holder, or any other security otherwise deliverable pursuant to such exercise, as set forth on the applicable Form of Election to Purchase, such Holder (together with such Holder’s affiliates valid assignee (as defined but specifically excluding any time during which any suspension of such Registration Statement is in Rule 13e-3 effect), in lieu of exercising the Warrants for cash, a registered Holder may elect during such time to receive shares equal to the value of the rules promulgated under Warrant (or the Exchange Act, an “Affiliate”), and any other Persons acting as a group together with portion thereof being exercised) by delivering such Holder or any of such Holder’s Affiliates), would have Beneficial Ownership (as defined below) of more than 19.999% of the number of outstanding shares of Common Stock or any other class of equity security (other than an exempted security) that is registered pursuant to Section 12 of the Exchange Act (a “Class”) (the “19.999% Ownership Limitation”).
(e) Notwithstanding the provisions of subsection 4(d) above, during any period of time in which a Holder’s Beneficial Ownership of Common Stock or any other Class (excluding, for purposes of this calculation, the number of shares of Common Stock or any other Class issuable upon exercise of the Warrants and any other warrants issued contemporaneously with the Warrants) is less than 10%, a Holder shall not have the right to exercise any portion of the Warrants, pursuant to this Section 4 or otherwise, to the extent that after giving effect to the issuance of Warrant Shares or any other security otherwise deliverable pursuant to such exercise, as set forth on the applicable Form of Election to Purchase, such Holder (together with such Holder’s Affiliates and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates), would have Beneficial Ownership of more than 9.999% of the number of outstanding shares of Common Stock or any other Class (the “9.999% Ownership Limitation”).
(f) Notwithstanding the provisions of subsections 4(d) and (e) above, during any period of time in which a Holder’s Beneficial Ownership of Common Stock or any other Class (excluding, for purposes of this calculation, the number of shares of Common Stock or any other Class issuable upon exercise of the Warrants and any other warrants issued contemporaneously with the Warrants) is less than 5%, a Holder shall not have the right to exercise any portion of the Warrants, pursuant to this Section 4 or otherwise, to the extent that after giving effect to the issuance of Warrant Shares or any other security otherwise deliverable pursuant to such exercise, as set forth on the applicable Form of Election to Purchase, such Holder (together with such Holder’s Affiliates and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates), would have Beneficial Ownership of more than 4.999% of the number of outstanding shares of Common Stock or any other Class (the “4.999% Ownership Limitation”).
(g) For purposes of subsections 4(d) through (f) above, unless otherwise indicated, the number of shares of Common Stock or any other Class “Beneficially Owned” by a Holder and its Affiliates (and any other Persons acting as a group together with a Holder or any of such Holder’s Affiliates) shall include the number of shares of Common Stock or any other Class issuable upon exercise of the Warrants with respect to which such determination is being made, but shall exclude the number of shares of Common Stock or any other Class which would be issuable upon (i) exercise of the remaining, nonexercised portion of the Warrants beneficially owned by such Holder or any of its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates) and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company exercisable for or convertible into Common Stock or any other Class that are subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Holder or any of its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates). Except as set forth in the preceding sentence, for purposes of subsections 4(d) through (f), Beneficial Ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by each Holder that the Company is not representing to any Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and each Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that a limitation contained in subsections 4(d) through (f) applies, the determination of whether the Warrants owned by a Holder are exercisable (in relation to other securities owned by such Holder together with its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates)) and of which portion of the Warrants owned by such Holder is exercisable shall be in the sole discretion of such Holder, and the submission of a Form of Election to Purchase to the Warrant Agent or the Company, as applicable, shall be deemed to be such Holder’s determination of whether the Warrants owned by such Holder are exercisable (in relation to other securities owned by such Holder together with any of its Affiliates (and any other Persons acting as a group together with such Holder or any notice of such Holder’s Affiliateselection (a “Net Exercise”)) and of which portion of . In such Warrants are exercisablecase, in each case subject to the 19.999% Ownership Limitation, 9.999% Ownership Limitation or 4.999% Ownership Limitation, as applicable, and neither the Company nor the Warrant Agent shall have any obligation issue to verify or confirm the accuracy of such determination. In addition, Holder a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of subsections 4(d) through (f), in determining the number of outstanding shares of Common Stock or any other Class, a Holder may rely on Warrant Shares computed using the number of outstanding shares of Common Stock or any other Class as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company setting forth the number of shares of Common Stock or such other Class outstanding. Upon the written or oral request of a Holder, the Company shall, within three Trading Days, confirm orally and in writing to the Holder the number of shares of Common Stock or any other Class then outstanding. In any case, the number of outstanding shares of Common Stock or any other Class shall be determined after giving effect to the conversion or exercise of securities of the Company, including the Warrants, by the Holder or its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates) since the date as of which such number of outstanding shares of Common Stock or any other Class was reported.
(h) A Holder, upon not less than 61 days’ prior notice to the Company, may increase either or both of the 4.999% Ownership Limitation and the 9.999% Ownership Limitation to any other percentage not in excess of the 19.999% Ownership Limitation. Any such increase will not be effective until the 61st day after such notice is delivered to the Company. A Holder may decrease either or both of the 4.999% Ownership Limitation and the 9.999% Ownership Limitation upon prior notice to the Company.
(i) The provisions of subsections 4(d) through (h) shall be construed and implemented in a manner otherwise than in strict conformity with their terms in order to correct any portion thereof which may be defective or inconsistent with the intended beneficial ownership limitations therein contained or to make changes or supplements necessary or desirable to properly give effect to such limitations. The limitations contained in subsections 4(d) through (h) shall apply to a successor holder of the Warrants.following formula: Where:
Appears in 1 contract
Samples: Warrant Agreement (Superconductor Technologies Inc)
Exercise of Warrants and Delivery of Warrant Shares. (a) A If, and only if, an effective registration statement is then available for the issuance of the Warrant Shares, a registered Holder may exercise the Warrants through a cash exercise (a “Cash Exercise”) or, if an effective registration statement is not then available for the issuance of the Warrant Shares, through a cashless exercise (a “Cashless Exercise”) pursuant to Section 4(b) below if, and only if, an effective registration statement is not then available for the issuance of the Warrant Sharesbelow. If an effective registration statement is available for the issuance of the Warrant Shareswarrants, a registered Holder the warrants may only exercise the Warrants be exercised through a cash exercise (a “Cash Exercise”)exercise.
(b) The Holder may effect a Cashless Exercise by delivering a duly executed surrendering Warrant Certificates to the Warrant Agent and noting on the Form of Election to Purchase to the Company indicating that the Holder wishes to effect a Cashless Exercise, upon which the Company shall issue, or cause to be issued, to the Holder the number of Warrant Shares determined as follows: X = Y x (A-B)/A where: X = the number of Warrant Shares to be issued to the Holder; Y = the number of Warrant Shares with respect to which the Warrant Certificates are being exercised; A = the Market Price as of the Date of Exercise; and B = the Exercise Price.
(c) At such times, and upon such representations and agreements, if applicable, upon surrender of a Warrant Certificate and delivery of a duly executed the Form of Election to Purchase (with the Warrant Shares Exercise Log attached) to the Warrant Agent or the Company, as applicable, pursuant to the at its address for notice provision set forth in Section 13, and, in the case of a Cash Exercise, upon payment of the Exercise Price multiplied by the number of Warrant Shares that the Holder intends to purchase thereunder (which must be a whole number) in accordance with Section 9 (the “Aggregate Exercise Price”), the Company shall, within three Trading Days of the Date of Exercise, at the option of shall promptly issue and deliver to the Holder (i) to a certificate for the extent that the Company’s transfer agent is participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program, cause its transfer agent to credit the aggregate Warrant Shares issuable upon such exercise to the Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian System, or (ii) if the transfer agent is not participating in the DTC Fast Automated Securities Transfer Program, issue and deliver to the Holder, or at the Holder’s instruction pursuant to the Form of Election to Purchase, the Holder’s agent or designee, in each case pursuant to this clause (ii), sent by reputable overnight courier to the address specified in the applicable Form of Election to Purchase, a certificate, registered in the Company’s share register in the name of the Holder or its designee (as indicated in the applicable Form of Election to Purchase), for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise. Upon delivery of a duly executed Form of Election to Purchase as set forth above, the Holder, or any Any Person so designated by the Holder to receive Warrant Shares, Shares shall be deemed to have become holder of record of such Warrant Shares as of the Date of Exercise of the relevant Warrant Certificate, irrespective of the date such Warrant Shares are credited to the Holder’s DTC account or the date of delivery of the certificates evidencing such Warrant Shares (as the case may be). For so long as there is a then effective registration statement covering the issuance of the Warrant Shares or if a Holder effects a Cashless Exercise, the Warrant Shares shall be issued free of all restrictive legends, and the Company shall, upon request of the Holder, if available, use commercially reasonable efforts to deliver Warrant Shares hereunder electronically through the Depository Trust Corporation or another established clearing corporation performing similar functions. If fewer than all Warrant Shares issuable upon exercise of the relevant Warrant Certificate are purchased on such Date of Exercise, then the Company will execute and deliver to the Holder or its assigns a New Warrant Certificate (dated the date thereof) evidencing the unexercised portion of the relevant Warrant Certificate.
(d) A Holder shall not have the right to exercise any portion of the Warrants, pursuant to this Section 4 or otherwise, to the extent that after giving effect to the such issuance of Warrant Shares or any other security otherwise deliverable pursuant to such exercise, after exercise as set forth on the applicable Form of Election to Purchase, such Holder (together with such Holder’s affiliates Affiliates (as defined in Rule 13e-3 of the rules Rules promulgated under the Exchange Act, an “Affiliate”), and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates), would have beneficially own in excess of the Beneficial Ownership Limitation (as defined below) of more than 19.999% ). For purposes of the number of outstanding shares of Common Stock or any other class of equity security (other than an exempted security) that is registered pursuant to Section 12 of the Exchange Act (a “Class”) (the “19.999% Ownership Limitation”).
(e) Notwithstanding the provisions of subsection 4(d) above, during any period of time in which a Holder’s Beneficial Ownership of Common Stock or any other Class (excluding, for purposes of this calculationforegoing sentence, the number of shares of Common Stock or any other Class issuable upon exercise of the Warrants and any other warrants issued contemporaneously with the Warrants) is less than 10%, a Holder shall not have the right to exercise any portion of the Warrants, pursuant to this Section 4 or otherwise, to the extent that after giving effect to the issuance of Warrant Shares or any other security otherwise deliverable pursuant to such exercise, as set forth on the applicable Form of Election to Purchase, such Holder (together with such Holder’s Affiliates and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates), would have Beneficial Ownership of more than 9.999% of the number of outstanding shares of Common Stock or any other Class (the “9.999% Ownership Limitation”).
(f) Notwithstanding the provisions of subsections 4(d) and (e) above, during any period of time in which a Holder’s Beneficial Ownership of Common Stock or any other Class (excluding, for purposes of this calculation, the number of shares of Common Stock or any other Class issuable upon exercise of the Warrants and any other warrants issued contemporaneously with the Warrants) is less than 5%, a Holder shall not have the right to exercise any portion of the Warrants, pursuant to this Section 4 or otherwise, to the extent that after giving effect to the issuance of Warrant Shares or any other security otherwise deliverable pursuant to such exercise, as set forth on the applicable Form of Election to Purchase, such Holder (together with such Holder’s Affiliates and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates), would have Beneficial Ownership of more than 4.999% of the number of outstanding shares of Common Stock or any other Class (the “4.999% Ownership Limitation”).
(g) For purposes of subsections 4(d) through (f) above, unless otherwise indicated, the number of shares of Common Stock or any other Class “Beneficially Owned” beneficially owned by a Holder and its Affiliates (and any other Persons acting as a group together with a Holder or any of such Holder’s Affiliates) shall include the number of shares of Common Stock or any other Class issuable upon exercise of the Warrants with respect to which such determination is being made, but shall exclude the number of shares of Common Stock or any other Class which would be issuable upon (i) exercise of the remaining, nonexercised portion of the Warrants beneficially owned by such Holder or any of its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates) and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company exercisable for or convertible into Common Stock or any other Class that are subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Holder or any of its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates). Except as set forth in the preceding sentence, for purposes of subsections this Section 4(d) through (f), Beneficial Ownership beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by each Holder that the Company is not representing to any Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and each Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that a the limitation contained in subsections this Section 4(d) through (f) applies, the determination of whether the Warrants owned by a Holder are exercisable (in relation to other securities owned by such Holder together with its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates)) and of which portion of the Warrants owned by such Holder is exercisable shall be in the sole discretion of such Holder, and the submission of a Form of Election to Purchase to the Warrant Agent or the Company, as applicable, shall be deemed to be such Holder’s determination of whether the Warrants owned by such Holder are exercisable (in relation to other securities owned by such Holder together with any of its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates)) and of which portion of such Warrants are exercisable, in each case subject to the 19.999% Beneficial Ownership Limitation, 9.999% Ownership Limitation or 4.999% Ownership Limitation, as applicable, and neither the Company nor the Warrant Agent shall have any no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of subsections this Section 4(d) through (f), in determining the number of outstanding shares of Common Stock or any other ClassStock, a Holder may rely on the number of outstanding shares of Common Stock or any other Class as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company setting forth the number of shares of Common Stock or such other Class outstanding. Upon the written or oral request of a Holder, the Company shall, shall within three Trading Days, Days confirm orally and in writing to the Holder the number of shares of Common Stock or any other Class then outstanding. In any case, the number of outstanding shares of Common Stock or any other Class shall be determined after giving effect to the conversion or exercise of securities of the Company, including the Warrants, by the Holder or its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates) since the date as of which such number of outstanding shares of Common Stock or any other Class was reported.
(h) . The “Beneficial Ownership Limitation” for a Holder shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of the Warrants owned by such Holder. A Holder, upon not less than 61 days’ prior notice to the Company, may increase either or both of decrease the 4.999% Beneficial Ownership Limitation and provisions of this Section 4(d), but may not increase the 9.999% Beneficial Ownership Limitation to above 19.99% in any other percentage not in excess of the 19.999% Ownership Limitationevent. Any such increase or decrease will not be effective until the 61st day after such notice is delivered to the Company. A Holder may decrease either or both of the 4.999% Ownership Limitation and the 9.999% Ownership Limitation upon prior notice to the Company.
(i) The provisions of subsections 4(d) through (h) this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with their the terms in order of this Section 4(d) to correct this paragraph (or any portion thereof hereof) which may be defective or inconsistent with the intended beneficial ownership limitations therein Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitationslimitation. The limitations contained in subsections 4(d) through (h) this paragraph shall apply to a successor holder of the Warrants.
Appears in 1 contract
Samples: Warrant Agreement (Microvision Inc)
Exercise of Warrants and Delivery of Warrant Shares. (a) A registered Holder may exercise the Warrants through a cashless exercise (a “Cashless Exercise”) pursuant to Section 4(b) below if, and only if, an effective registration statement is not then available for the issuance of the Warrant Shares. If an effective registration statement is available for the issuance of the Warrant Shares, a registered Holder may only exercise the Warrants through a cash exercise (a “Cash Exercise”).
(b) The Holder may effect a Cashless Exercise by delivering a duly executed surrendering Warrant Certificates to the Company and noting on the Form of Election to Purchase to the Company indicating that the Holder wishes to effect a Cashless Exercise, upon which the Company shall issue, or cause to be issued, to the Holder the number of Warrant Shares determined as follows: X = Y x (A-B)/A where: X = the number of Warrant Shares to be issued to the Holder; Y = the number of Warrant Shares with respect to which the Warrant Certificates are being exercised; A = the Market Price as of the Date of Exercise; and B = the Exercise Price.
(c) At such times, and upon such representations and agreements, if applicable, upon surrender of a Warrant Certificate and delivery of a duly executed the Form of Election to Purchase (with the Warrant Shares Exercise Log attached) to the Warrant Agent or the Company, as applicable, pursuant to the at its address for notice provision set forth in Section 13, and, in the case of a Cash Exercise, upon payment of the Exercise Price multiplied by the number of Warrant Shares that the Holder intends to purchase thereunder (which must be a whole number) in accordance with Section 9 (the “Aggregate Exercise Price”), the Company shallshall promptly issue and deliver, within three Trading Days of the Date of Exerciseor cause to be issued and delivered, at the option of to the Holder (i) to a certificate for the extent that the Company’s transfer agent is participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program, cause its transfer agent to credit the aggregate Warrant Shares issuable upon such exercise to the Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian System, or (ii) if the transfer agent is not participating in the DTC Fast Automated Securities Transfer Program, issue and deliver to the Holder, or at the Holder’s instruction pursuant to the Form of Election to Purchase, the Holder’s agent or designee, in each case pursuant to this clause (ii), sent by reputable overnight courier to the address specified in the applicable Form of Election to Purchase, a certificate, registered in the Company’s share register in the name of the Holder or its designee (as indicated in the applicable Form of Election to Purchase), for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise. Upon delivery of a duly executed Form of Election to Purchase as set forth above, the Holder, or any Any Person so designated by the Holder to receive Warrant Shares, Shares shall be deemed to have become holder of record of such Warrant Shares as of the Date of Exercise of the relevant Warrant Certificate, irrespective of the date such Warrant Shares are credited to the Holder’s DTC account or the date of delivery of the certificates evidencing such Warrant Shares (as the case may be). For so long as there is a then effective registration statement covering the issuance of the Warrant Shares or if a Holder effects a Cashless Exercise, the Warrant Shares shall be issued free of all restrictive legends, and the Company shall, upon request of the Holder, if available, use commercially reasonable efforts to deliver Warrant Shares hereunder electronically through the Depository Trust Corporation or another established clearing corporation performing similar functions. If fewer than all Warrant Shares issuable upon exercise of the relevant Warrant Certificate are purchased on such Date of Exercise, then the Company will execute and deliver to the Holder or its assigns a New Warrant Certificate (dated the date thereof) evidencing the unexercised portion of the relevant Warrant Certificate.
(d) A Holder shall not have the right to exercise any portion of the Warrants, pursuant to this Section 4 or otherwise, to the extent that after giving effect to the issuance of Warrant Shares or any other security otherwise deliverable pursuant to such exercise, as set forth on the applicable Form of Election to Purchase, such Holder (together with such Holder’s affiliates (as defined in Rule 13e-3 of the rules promulgated under the Exchange Act, an “Affiliate”), and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates), would have Beneficial Ownership (as defined below) of more than 19.999% of the number of outstanding shares of Common Stock or any other class of equity security (other than an exempted security) that is registered pursuant to Section 12 of the Exchange Act (a “Class”) (the “19.999% Ownership Limitation”).
(e) Notwithstanding the provisions of subsection 4(d) above, during any period of time in which a Holder’s Beneficial Ownership of Common Stock or any other Class (excluding, for purposes of this calculation, the number of shares of Common Stock or any other Class issuable upon exercise of the Warrants and any other warrants issued contemporaneously with the Warrants) is less than 10%, a Holder shall not have the right to exercise any portion of the Warrants, pursuant to this Section 4 or otherwise, to the extent that after giving effect to the issuance of Warrant Shares or any other security otherwise deliverable pursuant to such exercise, as set forth on the applicable Form of Election to Purchase, such Holder (together with such Holder’s Affiliates and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates), would have Beneficial Ownership of more than 9.999% of the number of outstanding shares of Common Stock or any other Class (the “9.999% Ownership Limitation”).
(f) Notwithstanding the provisions of subsections 4(d) and (e) above, during any period of time in which a Holder’s Beneficial Ownership of Common Stock or any other Class (excluding, for purposes of this calculation, the number of shares of Common Stock or any other Class issuable upon exercise of the Warrants and any other warrants issued contemporaneously with the Warrants) is less than 5%, a Holder shall not have the right to exercise any portion of the Warrants, pursuant to this Section 4 or otherwise, to the extent that after giving effect to the issuance of Warrant Shares or any other security otherwise deliverable pursuant to such exercise, as set forth on the applicable Form of Election to Purchase, such Holder (together with such Holder’s Affiliates and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates), would have Beneficial Ownership of more than 4.999% of the number of outstanding shares of Common Stock or any other Class (the “4.999% Ownership Limitation”).
(g) For purposes of subsections 4(d) through (f) above, unless otherwise indicated, the number of shares of Common Stock or any other Class “Beneficially Owned” by a Holder and its Affiliates (and any other Persons acting as a group together with a Holder or any of such Holder’s Affiliates) shall include the number of shares of Common Stock or any other Class issuable upon exercise of the Warrants with respect to which such determination is being made, but shall exclude the number of shares of Common Stock or any other Class which would be issuable upon (i) exercise of the remaining, nonexercised portion of the Warrants beneficially owned by such Holder or any of its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates) and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company exercisable for or convertible into Common Stock or any other Class that are subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Holder or any of its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates). Except as set forth in the preceding sentence, for purposes of subsections 4(d) through (f), Beneficial Ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by each Holder that the Company is not representing to any Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and each Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that a limitation contained in subsections 4(d) through (f) applies, the determination of whether the Warrants owned by a Holder are exercisable (in relation to other securities owned by such Holder together with its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates)) and of which portion of the Warrants owned by such Holder is exercisable shall be in the sole discretion of such Holder, and the submission of a Form of Election to Purchase to the Warrant Agent or the Company, as applicable, shall be deemed to be such Holder’s determination of whether the Warrants owned by such Holder are exercisable (in relation to other securities owned by such Holder together with any of its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates)) and of which portion of such Warrants are exercisable, in each case subject to the 19.999% Ownership Limitation, 9.999% Ownership Limitation or 4.999% Ownership Limitation, as applicable, and neither the Company nor the Warrant Agent shall have any obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of subsections 4(d) through (f), in determining the number of outstanding shares of Common Stock or any other Class, a Holder may rely on the number of outstanding shares of Common Stock or any other Class as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company setting forth the number of shares of Common Stock or such other Class outstanding. Upon the written or oral request of a Holder, the Company shall, within three Trading Days, confirm orally and in writing to the Holder the number of shares of Common Stock or any other Class then outstanding. In any case, the number of outstanding shares of Common Stock or any other Class shall be determined after giving effect to the conversion or exercise of securities of the Company, including the Warrants, by the Holder or its Affiliates (and any other Persons acting as a group together with such Holder or any of such Holder’s Affiliates) since the date as of which such number of outstanding shares of Common Stock or any other Class was reported.
(h) A Holder, upon not less than 61 65 days’ prior notice to the Company, may increase or decrease either or both of the 4.999% Ownership Limitation and the 9.999% Ownership Limitation to any other percentage not in excess of the 19.999% Ownership Limitation. Any such increase or decrease will not be effective until the 61st 65th day after such notice is delivered to the Company. A Holder may decrease either or both of the 4.999% Ownership Limitation and the 9.999% Ownership Limitation upon prior notice to the Company.
(i) The provisions of subsections 4(d) through (h) shall be construed and implemented in a manner otherwise than in strict conformity with their terms in order to correct any portion thereof which may be defective or inconsistent with the intended beneficial ownership limitations therein contained or to make changes or supplements necessary or desirable to properly give effect to such limitations. The limitations contained in subsections 4(d) through (h) shall apply to a successor holder of the Warrants.
Appears in 1 contract
Samples: Warrant Agreement (Gevo, Inc.)
