Exercise or Conversion of Warrant. 3.1 The purchase rights represented by this Warrant are exercisable by the registered holder hereof, in whole or in part, at any time, or from time to time, during the term hereof as described in Section l above, by the surrender of this Warrant and the Notice of Exercise or Conversion annexed hereto duly completed and executed on behalf of the holder hereof, at the office of the Company in Emeryville, California (or such other office or agency of the Company as it may designate by notice in writing to the registered holder hereof at the address of such holder appearing on the books of the Company), and subject to Section 3.2 hereof, upon payment of the purchase price of the shares thereby purchased in cash or check acceptable to the Company, whereupon the holder of this Warrant shall be entitled to receive a certificate for the number of shares so purchased and, if this Warrant is converted in part, a new Warrant for the remaining portion of this Warrant. 3.2 Notwithstanding any provisions herein to the contrary, if the Fair Market Value (as hereinafter defined) is greater than the Exercise Price (at the date of calculation, as set forth below), in lieu of exercising this Warrant as hereinabove permitted, the holder may elect to convert this Warrant, in whole or in part, into shares of Common Stock equal to the value (as determined below) of the exercised portion of this Warrant by surrender of such portion of this Warrant for conversion at the office of the Company referred to in Section 3.1 above, together with the Notice of Exercise or Conversion, in which event the Company shall issue to the holder that number of shares of Common Stock computed using the formula below and, if this Warrant is converted in part, a new Warrant for the remaining portion of this Warrant. CS = WCS x (FMV-EP) -------------- FMV Where, for purposes of this Section 3.2 CS equals the number of shares of Common Stock to be issued to the holder WCS equals the number of shares of Common Stock purchasable under the Warrant which are to be converted by the holder FMV equals the Market Price, as defined in Section 10, of one share of the Company's Common Stock EP equals the Exercise Price (as adjusted to the date of such calculation). 3.3 The Company agrees that, upon exercise or conversion of this Warrant in accordance with the terms hereof, the shares so purchased shall be deemed to be issued to such holder as the record owner of such shares as of the close of business on the date on which this Warrant shall have been exercised or converted. The parties intend that in the event this Warrant is converted into shares of Common Stock pursuant to Section 3.2 above, the holder be entitled to "tack" the holding period of this Warrant to the holding period of the shares issued upon such conversion for purposes of the holding period requirements of Rule 144 under the Securities Act of 1933, as amended (the "Securities Act"). Certificates for shares purchased hereunder and, on partial exercise or conversion of this Warrant, a new Warrant for the unexercised portion of this Warrant shall be delivered to the holder hereof as promptly as practicable after the date on which this Warrant shall have been exercised or converted. 3.4 The Company covenants that all shares which may be issued upon the exercise of rights represented by this Warrant will, upon exercise of the rights represented by this Warrant and payment of the Exercise Price or surrender of the appropriate number of Shares, be fully paid and nonassessable and free from all taxes, liens and charges in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously or otherwise specified herein). 3.5 The Company will reserve and keep available free from preemptive rights, out of its authorized but unissued shares of Common Stock, the full number of Shares deliverable upon the exercise of this Warrant in full. The Company or, if appointed, a transfer agent (a "Transfer Agent") will be irrevocably authorized and directed at all times to reserve such number of authorized shares of Common Stock as are required for such purpose. The Company will keep a copy of this Warrant on file with each Transfer Agent. The Company will furnish such Transfer Agent with a copy of all notices of adjustments and certificates related thereto which are transmitted to the holder pursuant to Section 11 hereof.
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Samples: Warrant Agreement (Evolve Software Inc), Warrant Agreement (Evolve Software Inc)
Exercise or Conversion of Warrant. 3.1 The purchase rights represented by this Warrant are exercisable by the registered holder hereof, in whole or in part, at any time, or from time to time, during the term hereof as described in Section l above, by the surrender (a) Upon delivery of this Warrant and the Notice of Exercise or Conversion annexed hereto duly completed and executed on behalf executed, together with payment in full, in lawful money of the holder hereofUnited States, of the Exercise Price of the shares of Common Stock being purchased, at the office of the Company in EmeryvilleCompany, California (or at such other office or agency of address as the Company as it may designate by notice in writing to the registered holder hereof at the address of such holder appearing on the books of the Company)thereof, and subject to Section 3.2 hereof, upon payment of the purchase price of the shares thereby purchased in cash or check acceptable to the Company, whereupon the holder of this Warrant shall be entitled to receive a certificate or certificates for the shares of Common Stock so purchased. Such shares shall be validly issued, fully paid and non-assessable. This Warrant shall be deemed to have been exercised immediately prior to the close of business on the day of such delivery, and the holder hereof shall be deemed the holder of record of the shares issuable upon such exercise at such time. This Warrant may be exercised in Whole or in part and from time to time as the holder may determine. Upon any partial exercise, this Warrant shall be surrendered and a new certificate or certificates evidencing the right to Purchase the number of shares so purchased and, if not Purchased upon such exercise shall be issued to the holder.
(b) Upon delivery of this Warrant is converted duly executed at the office of the Company, or at such other address as the Company may designate by notice in writing to the holder hereof, the holder of this Warrant shall have the right to require the Company to convert this Warrant (the "Conversion Right"), in whole but not in part, a new Warrant at any time or from time to time, prior to its expiration, into shares of Common Stock as provided for in this Section 2(b). Upon exercise of the remaining portion of this Warrant.
3.2 Notwithstanding any provisions herein Conversion Right, the Company shall deliver to the contrary, if Warrantholder (without Payment by the Fair Market Value (as hereinafter definedWarrantholder of any Exercise Price) is greater than the Exercise Price (at the date that number of calculation, as set forth below), in lieu of exercising this Warrant as hereinabove permitted, the holder may elect to convert this Warrant, in whole or in part, into shares of Common Stock equal to the quotient obtained by dividing (x) the value (as determined below) of the exercised portion of this Warrant by surrender of such portion of this Warrant for conversion at the office time the Conversion Right is exercised (determined by subtracting the aggregate Exercise Price for the Warrant Shares in effect immediately prior to the exercise of the Company referred to in Section 3.1 above, together with Conversion Right from the Notice of Exercise or Conversion, in which event aggregate Fair Market Value for the Company shall issue Warrant Shares immediately prior to the holder that number exercise of shares the Conversion Right) by (y) the Fair Market Value of one share of Common Stock computed using immediately prior to the formula below andexercise of the Conversion Right. For purposes hereof, if this the term "Warrant is converted in part, a new Warrant for the remaining portion of this Warrant. CS = WCS x (FMV-EP) -------------- FMV Where, for purposes of this Section 3.2 CS equals Shares" shall mean the number of shares of Common Stock to be issued to which the holder WCS equals the number of shares of Common Stock purchasable under the Warrant which are to be converted by the holder FMV equals the Market Price, as defined in Section 10, of one share of the Company's Common Stock EP equals the Exercise Price (as adjusted to the date of such calculation).
3.3 The Company agrees that, upon exercise or conversion of this Warrant in accordance with the terms hereof, the shares so purchased shall be deemed to be issued to such holder as the record owner of such shares as of the close of business on the date on which this Warrant shall have been exercised or converted. The parties intend that in the event this Warrant Warrantholder is converted into shares of Common Stock pursuant to Section 3.2 above, the holder be entitled to "tack" the holding period of this Warrant to the holding period of the shares issued upon such conversion for purposes of the holding period requirements of Rule 144 purchase under the Securities Act of 1933, as amended (the "Securities Act"). Certificates for shares purchased hereunder and, on partial exercise or conversion of this Warrant, and the term "Fair Market Value" of a new Warrant for the unexercised portion of this Warrant shall be delivered to the holder hereof as promptly as practicable after the date on which this Warrant shall have been exercised or converted.
3.4 The Company covenants that all shares which may be issued upon the exercise of rights represented by this Warrant will, upon exercise of the rights represented by this Warrant and payment of the Exercise Price or surrender of the appropriate number of Shares, be fully paid and nonassessable and free from all taxes, liens and charges in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously or otherwise specified herein).
3.5 The Company will reserve and keep available free from preemptive rights, out of its authorized but unissued shares of Common Stock, the full number of Shares deliverable upon the exercise of this Warrant in full. The Company or, if appointed, a transfer agent (a "Transfer Agent") will be irrevocably authorized and directed at all times to reserve such number of authorized shares share of Common Stock as are required for such purpose. The Company will keep of a copy of this Warrant on file with each Transfer Agent. The Company will furnish such Transfer Agent with a copy of all notices of adjustments and certificates related thereto which are transmitted to particular date (the holder pursuant to Section 11 hereof."Determination Date") shall mean:
Appears in 1 contract
Exercise or Conversion of Warrant. 3.1 (a) The purchase rights represented by Holder is entitled to exercise this Warrant are exercisable by the registered holder hereof, in whole or in part, part at any time, or from time to time, during until the term Expiration Date or, if such day is not a Business Day, then on the next succeeding day that shall be a Business Day; provided that the Holder is not entitled to exercise this Warrant in whole or in part as long as the Warrant Share Amount is subject to reduction under Section 10 hereof. To exercise this Warrant, the Holder shall execute and deliver to the Company a Warrant Exercise Notice substantially in the form annexed hereto. Subject to paragraph 2(e) below, no earlier than ten days after delivery of the Warrant Exercise Notice, the Holder shall deliver to the Company this Warrant, including the Warrant Exercise Subscription Form forming a part hereof duly executed by the Holder, together with payment of the applicable Exercise Price. Upon such delivery and payment, the Holder shall be deemed to be the holder of record of the Warrant Shares subject to such exercise, notwithstanding that the stock transfer books of the Company shall then be closed or that certificates representing such Warrant Shares shall not then be actually delivered to the Holder.
(b) The Exercise Price may be paid in cash or by certified or official bank check or bank cashier's check payable to the order of the Company or by any combination of such cash or check. The Company shall pay any and all documentary, stamp or similar issue or transfer taxes payable in respect of the issue or delivery of the Warrant Shares.
(c) If the Holder exercises this Warrant in part, this Warrant shall be surrendered by the Holder to the Company and a new Warrant of the same tenor and for the unexercised number of Warrant Shares shall be executed by the Company. The Company shall register the new Warrant in the name of the Holder or in such name or names of its transferee pursuant to paragraph 6 hereof as described may be directed in Section l above, writing by the Holder and deliver the new Warrant to the Person or Persons entitled to receive the same.
(d) Upon surrender of this Warrant and in conformity with the Notice foregoing provisions, the Company shall transfer to the Holder of Exercise or Conversion annexed hereto duly completed and executed on behalf this Warrant appropriate evidence of ownership of the holder hereofshares of Common Stock or other securities or property (including any money) to which the Holder is entitled, at registered or otherwise placed in, or payable to the office order of, the name or names of the Company in Emeryville, California (Holder or such transferee as may be directed in writing by the Holder, and shall deliver such evidence of ownership and any other office securities or agency property (including any money) to the Person or Persons entitled to receive the same, together with an amount in cash in lieu of any fraction of a share as provided in paragraph 5 below.
(e) In lieu of making the Company cash payment required to exercise the Warrant pursuant to paragraph 2(a) (but in all other respects in accordance with the exercise procedure set forth in paragraph 2(a), as it may designate by notice in writing be adjusted to reflect the registered holder hereof at the address of such holder appearing on the books of the Companyconversion referred to herein), and subject to Section 3.2 hereof, upon payment of the purchase price of the shares thereby purchased in cash or check acceptable to the Company, whereupon the holder of this Warrant shall be entitled to receive a certificate for the number of shares so purchased and, if this Warrant is converted in part, a new Warrant for the remaining portion of this Warrant.
3.2 Notwithstanding any provisions herein to the contrary, if the Fair Market Value (as hereinafter defined) is greater than the Exercise Price (at the date of calculation, as set forth below), in lieu of exercising this Warrant as hereinabove permitted, the holder Holder may elect to convert this WarrantWarrant into shares of Common Stock, in whole or in part, into which event the Company will issue to the Holder the number of shares of Common Stock equal to the value result obtained by (a) subtracting B from A, (b) multiplying the difference by C, and (c) dividing the product by A as determined belowset forth in the following equation: X = (A - B) of the exercised portion of this Warrant by surrender of such portion of this Warrant for conversion at the office of the Company referred to in Section 3.1 above, together with the Notice of Exercise or Conversion, in which event the Company shall issue to the holder that number of shares of Common Stock computed using the formula below and, if this Warrant is converted in part, a new Warrant for the remaining portion of this Warrant. CS x C where: A X = WCS x (FMV-EP) -------------- FMV Where, for purposes of this Section 3.2 CS equals the number of shares of Common Stock to be issued to the holder WCS equals the number of shares of Common Stock purchasable under the Warrant which are to be converted by the holder FMV equals the Market Price, as defined in Section 10, of one share of the Company's Common Stock EP equals the Exercise Price (as adjusted to the date of such calculation).
3.3 The Company agrees that, issuable upon exercise or conversion of pursuant to this Warrant in accordance with paragraph 2(e). A = the terms hereof, Closing Price on the shares so purchased shall be deemed to be issued to such holder as the record owner of such shares as of the close of business on day immediately preceding the date on which this Warrant shall have been exercised or converted. The parties intend that in the event this Warrant is converted into shares of Common Stock Holder delivers written notice to the Company pursuant to Section 3.2 above, the holder be entitled to "tack" the holding period of this Warrant to the holding period of the shares issued upon such conversion for purposes of the holding period requirements of Rule 144 under the Securities Act of 1933, as amended (the "Securities Act"paragraph 2(a). Certificates for shares purchased hereunder and, on partial exercise or conversion of this Warrant, a new Warrant for the unexercised portion of this Warrant shall be delivered to the holder hereof as promptly as practicable after the date on which this Warrant shall have been exercised or converted.
3.4 The Company covenants that all shares which may be issued upon the exercise of rights represented by this Warrant will, upon exercise of the rights represented by this Warrant and payment of B = the Exercise Price or surrender of the appropriate number of Shares, be fully paid and nonassessable and free from all taxes, liens and charges in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously or otherwise specified herein)Price.
3.5 The Company will reserve and keep available free from preemptive rights, out of its authorized but unissued shares of Common Stock, the full number of Shares deliverable upon the exercise of this Warrant in full. The Company or, if appointed, a transfer agent (a "Transfer Agent") will be irrevocably authorized and directed at all times to reserve such number of authorized shares of Common Stock as are required for such purpose. The Company will keep a copy of this Warrant on file with each Transfer Agent. The Company will furnish such Transfer Agent with a copy of all notices of adjustments and certificates related thereto which are transmitted to the holder pursuant to Section 11 hereof.
Appears in 1 contract
Exercise or Conversion of Warrant. 3.1 (a) The purchase rights represented by Holder is entitled to exercise this Warrant are exercisable by the registered holder hereof, in whole or in part, part at any time, or from time to time, during until the term Expiration Date or, if such day is not a Business Day, then on the next succeeding day that shall be a Business Day. To exercise this Warrant, the Holder shall execute and deliver to the Company a Warrant Exercise Notice substantially in the form annexed hereto. Subject to paragraph 2(e) below, no earlier than ten days after delivery of the Warrant Exercise Notice, the Holder shall deliver to the Company this Warrant, including the Warrant Exercise Subscription Form forming a part hereof duly executed by the Holder, together with payment of the applicable Exercise Price. Upon such delivery and payment, the Holder shall be deemed to be the holder of record of the Warrant Shares subject to such exercise, notwithstanding that the stock transfer books of the Company shall then be closed or that certificates representing such Warrant Shares shall not then be actually delivered to the Holder.
(b) The Exercise Price may be paid in cash or by certified or official bank check or bank cashier's check payable to the order of the Company or by any combination of such cash or check. The Company shall pay any and all documentary, stamp or similar issue or transfer taxes payable in respect of the issue or delivery of the Warrant Shares.
(c) If the Holder exercises this Warrant in part, this Warrant shall be surrendered by the Holder to the Company and a new Warrant of the same tenor and for the unexercised number of Warrant Shares shall be executed by the Company. The Company shall register the new Warrant in the name of the Holder or in such name or names of its transferee pursuant to paragraph 6 hereof as described may be directed in Section l above, writing by the Holder and deliver the new Warrant to the Person or Persons entitled to receive the same.
(d) Upon surrender of this Warrant and in conformity with the Notice foregoing provisions, the Company shall transfer to the Holder of Exercise or Conversion annexed hereto duly completed and executed on behalf this Warrant appropriate evidence of ownership of the holder hereofshares of Common Stock or other securities or property (including any money) to which the Holder is entitled, at registered or otherwise placed in, or payable to the office order of, the name or names of the Company in Emeryville, California (Holder or such transferee as may be directed in writing by the Holder, and shall deliver such evidence of ownership and any other office securities or agency property (including any money) to the Person or Persons entitled to receive the same, together with an amount in cash in lieu of any fraction of a share as provided in paragraph 5 below.
(e) In lieu of making the Company cash payment required to exercise the Warrant pursuant to paragraph 2(a) (but in all other respects in accordance with the exercise procedure set forth in paragraph 2(a), as it may designate by notice in writing be adjusted to reflect the registered holder hereof at the address of such holder appearing on the books of the Companyconversion referred to herein), and subject to Section 3.2 hereof, upon payment of the purchase price of the shares thereby purchased in cash or check acceptable to the Company, whereupon the holder of this Warrant shall be entitled to receive a certificate for the number of shares so purchased and, if this Warrant is converted in part, a new Warrant for the remaining portion of this Warrant.
3.2 Notwithstanding any provisions herein to the contrary, if the Fair Market Value (as hereinafter defined) is greater than the Exercise Price (at the date of calculation, as set forth below), in lieu of exercising this Warrant as hereinabove permitted, the holder Holder may elect to convert this WarrantWarrant into shares of Common Stock, in whole or in part, into which event the Company will issue to the Holder the number of shares of Common Stock equal to the value result obtained by (a) subtracting B from A, (b) multiplying the difference by C, and (c) dividing the product by A as determined belowset forth in the following equation: X = (A - B) of the exercised portion of this Warrant by surrender of such portion of this Warrant for conversion at the office of the Company referred to in Section 3.1 above, together with the Notice of Exercise or Conversion, in which event the Company shall issue to the holder that number of shares of Common Stock computed using the formula below and, if this Warrant is converted in part, a new Warrant for the remaining portion of this Warrant. CS x C where: ----------- A X = WCS x (FMV-EP) -------------- FMV Where, for purposes of this Section 3.2 CS equals the number of shares of Common Stock to be issued to the holder WCS equals the number of shares of Common Stock purchasable under the Warrant which are to be converted by the holder FMV equals the Market Price, as defined in Section 10, of one share of the Company's Common Stock EP equals the Exercise Price (as adjusted to the date of such calculation).
3.3 The Company agrees that, issuable upon exercise or conversion of pursuant to this Warrant in accordance with paragraph 2(e). A = the terms hereof, Closing Price on the shares so purchased shall be deemed to be issued to such holder as the record owner of such shares as of the close of business on day immediately preceding the date on which this Warrant shall have been exercised or converted. The parties intend that in the event this Warrant is converted into shares of Common Stock Holder delivers written notice to the Company pursuant to Section 3.2 above, the holder be entitled to "tack" the holding period of this Warrant to the holding period of the shares issued upon such conversion for purposes of the holding period requirements of Rule 144 under the Securities Act of 1933, as amended (the "Securities Act"paragraph 2(a). Certificates for shares purchased hereunder and, on partial exercise or conversion of this Warrant, a new Warrant for the unexercised portion of this Warrant shall be delivered to the holder hereof as promptly as practicable after the date on which this Warrant shall have been exercised or converted.
3.4 The Company covenants that all shares which may be issued upon the exercise of rights represented by this Warrant will, upon exercise of the rights represented by this Warrant and payment of B = the Exercise Price or surrender of the appropriate number of Shares, be fully paid and nonassessable and free from all taxes, liens and charges in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously or otherwise specified herein)Price.
3.5 The Company will reserve and keep available free from preemptive rights, out of its authorized but unissued shares of Common Stock, the full number of Shares deliverable upon the exercise of this Warrant in full. The Company or, if appointed, a transfer agent (a "Transfer Agent") will be irrevocably authorized and directed at all times to reserve such number of authorized shares of Common Stock as are required for such purpose. The Company will keep a copy of this Warrant on file with each Transfer Agent. The Company will furnish such Transfer Agent with a copy of all notices of adjustments and certificates related thereto which are transmitted to the holder pursuant to Section 11 hereof.
Appears in 1 contract
Exercise or Conversion of Warrant. 3.1 (a) The purchase and conversion rights represented by this Warrant are exercisable by the registered holder hereof, in whole or in part, at any time, or from time to time, during the term hereof as described in Section l above, by the surrender of this Warrant and the Notice of Exercise or Conversion and Investment Representation Statement annexed hereto duly completed and executed on behalf of the holder hereof, at the office of the Company in EmeryvilleChico, California (or such other office or agency of the Company as it may designate by notice in writing to the registered holder hereof at the address of such holder appearing on the books of the Company), and subject to Section 3.2 hereof, upon payment of the purchase price of the shares thereby purchased in cash or check acceptable to the Company, whereupon the holder of this Warrant shall be entitled to receive a certificate for the number of shares so purchased and, if this Warrant is converted in part, a new Warrant for the remaining portion of this Warrant.
3.2 (b) Notwithstanding any provisions herein to the contrary, if the Fair Market Value (as hereinafter defined) is greater than the Exercise Price (at the date of calculation, as set forth below), in lieu of exercising this Warrant as hereinabove permitted, the holder Holder may elect to convert this Warrant, in whole or in part, Warrant into shares of Common Stock equal to the value (as determined below) of the exercised portion of this Warrant by surrender of such portion of this Warrant for conversion at the office of the Company referred to in Section 3.1 paragraph (a) above, together with the Notice of Exercise or Conversion, in which event the Company shall issue to the holder Holder that number of shares of Common Stock computed using the formula below and, if this Warrant is converted in part, a new Warrant for the remaining portion of this Warrant. following formula: CS = WCS x (FMV-EP) -------------- FMV Where, for purposes of this Section 3.2 Where CS equals the number of shares of Common Stock to be issued to the holder Holder WCS equals the number of shares of Common Stock purchasable under the Warrant which are to be converted by the holder FMV equals the Market Price, as defined in Section 10, current fair market value of one share of the Company's Common Stock (at the date of such calculation) EP equals the Exercise Price (as adjusted to the date of such calculation).. For the purpose of any computation pursuant to this Section 3, the Fair Market Value at any date of one share of Common Stock shall as determined in good faith by the Board of Directors of the Company
3.3 (c) The Company agrees that, upon exercise or conversion of this Warrant in accordance with the terms hereof, the shares so purchased acquired shall be deemed to be issued to such holder as the record owner of such shares as of the close of business on the date on which this Warrant shall have been exercised or converted. The parties intend that in the event this Warrant is converted into shares of Common Stock pursuant to Section 3.2 above, the holder be entitled to "tack" the holding period of this Warrant to the holding period of the shares issued upon such conversion for purposes of the holding period requirements of Rule 144 under the Securities Act of 1933, as amended (the "Securities Act")exercised. Certificates for shares purchased hereunder shall be issued by the Company promptly and in no event later than twenty-one (21) days after the date of exercise or conversion, and, on partial exercise or conversion of this Warrant, a new an amended Warrant for the unexercised or uncovered portion of this Warrant shall be delivered to the holder hereof as promptly as practicable after the date on which this Warrant shall have been exercised or converted.
3.4 conversion. All other terms and conditions of such amended Warrant shall be identical to those contained herein. The Company covenants that all shares which may be issued upon the exercise or conversion of rights represented by this Warrant will, upon exercise of the rights represented by this Warrant and payment or conversion of the aggregate Exercise Price or surrender of the appropriate number of SharesPrice, if applicable be fully paid and nonassessable and free from all taxes, liens and charges in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously or otherwise specified herein).
3.5 The Company will reserve and keep available free from preemptive rights, out of its authorized but unissued shares of Common Stock, the full number of Shares deliverable upon the exercise of this Warrant in full. The Company or, if appointed, a transfer agent (a "Transfer Agent") will be irrevocably authorized and directed at all times to reserve such number of authorized shares of Common Stock as are required for such purpose. The Company will keep a copy of this Warrant on file with each Transfer Agent. The Company will furnish such Transfer Agent with a copy of all notices of adjustments and certificates related thereto which are transmitted to the holder pursuant to Section 11 hereof.
Appears in 1 contract
Samples: Warrant Agreement (Fafco Inc)
Exercise or Conversion of Warrant. 3.1 The purchase rights represented by this Warrant are exercisable by the registered holder hereof, in whole or in part, at any time, or from time to time, during the term hereof as described in Section l above, by the surrender (a) Upon delivery of this Warrant and the Notice of Exercise or Conversion annexed hereto duly completed and executed on behalf executed, together with payment in full, in lawful money of the holder hereofUnited States, of the Exercise Price of the shares of Common Stock being purchased, at the office of the Company in EmeryvilleCompany, California (or at such other office or agency of address as the Company as it may designate by notice in writing to the registered holder hereof at the address of such holder appearing on the books of the Company), and subject to Section 3.2 hereof, upon payment of the purchase price of the shares thereby purchased in cash or check acceptable to the Company, whereupon the holder of this Warrant shall be entitled to receive a certificate or certificates for the shares of Common Stock so purchased. Such shares shall be validly issued, fully paid and non-assessable. This Warrant shall be deemed to have been exercised immediately prior to the close of business on the day of such delivery, and the holder hereof shall be deemed the holder of record of the shares issuable upon such exercise at such time. This Warrant may be exercised in whole or in part and from time to time as the holder may determine. Upon any partial exercise, this Warrant shall be surrendered and a new certificate or certificates evidencing the right to purchase the number of shares so not purchased and, if upon such exercise shall be issued to the holder.
(b) Upon delivery of this Warrant is converted duly executed at the office of the Company, or at such other address as the Company may designate by notice in writing to the holder hereof, the holder of this Warrant shall have the right to require the Company to convert this Warrant (the "Conversion Right"), in whole but not in part, a new Warrant at any time or from time to time, prior to its expiration, into shares of Common Stock, as provided for in this Section 2(b). Upon exercise of the remaining portion of this Warrant.
3.2 Notwithstanding any provisions herein Conversion Right, the Company shall deliver to the contrary, if Warrantholder (without payment by the Fair Market Value (as hereinafter definedWarrantholder of any Exercise Price) is greater than the Exercise Price (at the date that number of calculation, as set forth below), in lieu of exercising this Warrant as hereinabove permitted, the holder may elect to convert this Warrant, in whole or in part, into shares of Common Stock equal to the quotient obtained by dividing (x) the value (as determined below) of the exercised portion of this Warrant by surrender of such portion of this Warrant for conversion Warrant: at the office time the Conversion Right is exercised (determined by subtracting the aggregate Exercise Price for the Warrant Shares in effect immediately prior to the exercise of the Company referred to in Section 3.1 above, together with Conversion Right from the Notice of Exercise or Conversion, in which event aggregate Fair Market Value for the Company shall issue Warrant Shares immediately prior to the holder that number exercise of shares the Conversion Right) by (y) the Fair Market Value of one share of Common Stock computed using immediately prior to the formula below andexercise of the Conversion Right. For purposes hereof, if this the term "Warrant is converted in part, a new Warrant for the remaining portion of this Warrant. CS = WCS x (FMV-EP) -------------- FMV Where, for purposes of this Section 3.2 CS equals Shares" shall mean the number of shares of Common Stock to be issued to which the holder WCS equals the number of shares of Common Stock purchasable under the Warrant which are to be converted by the holder FMV equals the Market Price, as defined in Section 10, of one share of the Company's Common Stock EP equals the Exercise Price (as adjusted to the date of such calculation).
3.3 The Company agrees that, upon exercise or conversion of this Warrant in accordance with the terms hereof, the shares so purchased shall be deemed to be issued to such holder as the record owner of such shares as of the close of business on the date on which this Warrant shall have been exercised or converted. The parties intend that in the event this Warrant Warrantholder is converted into shares of Common Stock pursuant to Section 3.2 above, the holder be entitled to "tack" the holding period of this Warrant to the holding period of the shares issued upon such conversion for purposes of the holding period requirements of Rule 144 purchase under the Securities Act of 1933, as amended (the "Securities Act"). Certificates for shares purchased hereunder and, on partial exercise or conversion of this Warrant, and the term "Fair Market Value" of a new Warrant for the unexercised portion of this Warrant shall be delivered to the holder hereof as promptly as practicable after the date on which this Warrant shall have been exercised or converted.
3.4 The Company covenants that all shares which may be issued upon the exercise of rights represented by this Warrant will, upon exercise of the rights represented by this Warrant and payment of the Exercise Price or surrender of the appropriate number of Shares, be fully paid and nonassessable and free from all taxes, liens and charges in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously or otherwise specified herein).
3.5 The Company will reserve and keep available free from preemptive rights, out of its authorized but unissued shares of Common Stock, the full number of Shares deliverable upon the exercise of this Warrant in full. The Company or, if appointed, a transfer agent (a "Transfer Agent") will be irrevocably authorized and directed at all times to reserve such number of authorized shares share of Common Stock as are required for such purpose. The Company will keep of a copy of this Warrant on file with each Transfer Agent. The Company will furnish such Transfer Agent with a copy of all notices of adjustments and certificates related thereto which are transmitted to particular date (the holder pursuant to Section 11 hereof"Determination Date") shall mean.
Appears in 1 contract
