Common use of Exercise Procedure and Payment Clause in Contracts

Exercise Procedure and Payment. Subject to the provisions of the Warrants and this Agreement, a Warrant, when countersigned by the Warrant Agent, may be exercised by the Registered Holder thereof by surrendering it, at the office of the Warrant Agent in the Borough of Manhattan, City and State of New York, with the subscription form, as set forth in the Warrant, duly executed, and by paying in full, in lawful money of the United States, in cash, good certified check or good bank draft payable to the order of the Company, the Warrant Price for each full share of Common Stock as to which the Warrant is exercised and any and all applicable taxes due in connection with the exercise of the Warrant, the exchange of the Warrant for the Common Stock and the issuance of the Common Stock. Provided that the Insider Warrants are held by Insiders or their affiliates at the time of such exercise, in the event of a redemption of Warrants pursuant to Section 6 hereof, the Insider Warrants may be exercised on a “cashless basis” by surrendering the Insider Warrants for that number of shares of Common Stock equal to the quotient obtained by dividing (a) the product of the number of shares of Common Stock underlying the Warrants multiplied by the difference between the Warrant Price and the “Fair Market Value” (defined below) by (b) the Fair Market Value. Solely for purposes of this Section 3.3.1, the “Fair Market Value” shall mean the average reported last sale price of the Common Stock for the ten (10) trading days ending on the third trading day prior to the date on which the notice of redemption is sent to holders of Warrants pursuant to Section 6 hereof.

Exercise Procedure and Payment. Subject to the provisions of the Warrants Warrant and this Warrant Agreement, a Warrant, when countersigned by the Warrant Agent, may be exercised by the Registered Holder thereof by surrendering itdelivering, not later than 5:00 P.M., New York City local time, on any Business Day during the Exercise Period (the "Exercise Date") to the Warrant Agent at its corporate trust department, or at the office of its successor as Warrant Agent, (i) the Warrant Certificate evidencing the Warrants to be exercised, or in the case of a Book-Entry Warrant Certificate, the Warrants to be exercised (the "Book-Entry Warrants") free on the records of the Depository to an account of the Warrant Agent at the Depository signed for such purpose in writing by the Warrant Agent to the Depository from time to time, (ii) an election to purchase the shares underlying the Warrants to be exercised ("Election to Purchase"), properly completed and executed by the Registered Holder on the reverse of the Warrant Certificate or, in the Borough case of Manhattan, City and State of New York, a Book-Entry Warrant Certificate properly delivered by the Participant in accordance with the subscription form, as set forth in the Warrant, duly executedDepository's procedure, and by paying in full, in lawful money of the United States, in cash, good certified check or good bank draft payable to the order of the Company, (iii) the Warrant Price for each full share of Common Stock as to which the Warrant is exercised and any and all applicable taxes due in connection with the exercise of the Warrant, as follows: (a) in cash, good certified check or good bank draft payable to the exchange order of the Warrant for Company (or as otherwise agreed to by the Common Stock and the issuance of the Common Stock. Provided that the Company); or (b) with respect to any Insider Warrants are held by Insiders or their affiliates at the time of such exerciseWarrants, in the event of a redemption of Warrants pursuant to Section 6 hereof, so long as such Insider Warrants are held by the Insider Warrants may be exercised on a “cashless basis” or its affiliates, by surrendering in lieu of payment of the Warrant Price the Insider Warrants for that number of shares of Common Stock equal to the quotient obtained by dividing (ax) the product of the number of shares of Common Stock underlying the Warrants Warrants, multiplied by the difference between the Warrant Price and the “Fair Market Value” Value (defined below) by (by) the Fair Market Value. Solely for purposes of this Section 3.3.1, the “"Fair Market Value” " shall mean the average reported last sale price of the Common Stock for the ten (10) trading days ending on the third trading day prior to the date on which the notice of redemption is sent to holders of Warrants Warrant pursuant to Section 6 hereof. If any of (i) the Warrant Certificate or the Book-Entry Warrants, (ii) the Election to Purchase, or (iii) the Warrant Price therefor, is received by the Warrant Agent after 5:00 P.M., New York City local time, on the specified Exercise Date, the Warrants will be deemed to be received and exercised on the Business Day next succeeding the Exercise Date. If the date specified as the Exercise Date is not a Business Day, the Warrants will be deemed to be received and exercised on the next succeeding day that is a Business Day. If the Warrants are received or deemed to be received after the Expiration Date, the exercise thereof will be null and void and any funds delivered to the Warrant Agent will be returned to the Registered Holder or Participant, as the case may be, as soon as practicable. In no event will interest accrue on funds deposited with the Warrant Agent in respect of an exercise or attempted exercise of Warrants. The validity of any exercise of Warrants will be determined by the Company in its sole discretion and such determination will be final and binding upon the Registered Holder and the Warrant Agent. Neither the Company nor the Warrant Agent shall have any obligation to inform a Holder of the invalidity of any exercise of Warrants. The Warrant Agent shall deposit all funds received by it in payment of the Warrant Price in the account of the Company maintained with the Warrant Agent for such purpose and shall advise the Company at the end of each day on which funds for the exercise of the Warrants are received of the amount so deposited to its account. The Warrant Agent shall promptly confirm such telephonic advice to the Company in writing. The Warrant Agent shall, by 11:00 A.M on the Business Day following the Exercise Date of any Warrant, advise the Company and the transfer agent and registrar in respect of the shares of Common Stock (the "Shares") issuable upon such exercise as to the number of Warrants exercised in accordance with the terms and conditions of this Agreement, the instructions of each Registered Holder or Participant, as the case may be, with respect to delivery of the Shares issuable upon such exercise, and the delivery of definitive Warrant Certificates and, in case of a Book-Entry Warrant Certificate, the notation that shall be made to the records maintained by the Depository, its nominee for each Book-Entry Warrant Certificate, or Participant, as appropriate, evidencing the balance, if any, of the Warrants remaining after such exercise, and such other information as the Company or such transfer agent and registrar shall reasonably require. The accrual of dividends, if any, on the Shares issued upon the valid exercise of any Warrant will be governed by the terms generally applicable to the Shares. From and after the issuance of such Shares, the former holder of the Warrants exercised will be entitled to the benefits generally available to other holders of Shares and such former Registered Holder's right to receive payments of dividends and any other amounts payable in respect of the Shares shall be governed by, and shall be subject to, the terms and provisions generally applicable to such Shares. The Company shall not be required to pay any stamp or other tax or governmental charge required to be paid in connection with any transfer involved in the issue of the Shares upon the exercise of Warrants; and in the event that any such transfer is involved the Company shall not be required to issue or deliver any Shares until such tax or other charge shall have been paid or it has been established to the Company's satisfaction that no such tax or other charge is due.