Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs), (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Company, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 10 contracts
Samples: Pre Funded Warrant Agreement (Medigus Ltd.), Underwriting Agreement (Medigus Ltd.), Underwriting Agreement (Nano Dimension Ltd.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity and in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 10 contracts
Samples: Subscription Agreement (Bellerophon Therapeutics, Inc.), Underwriting Agreement (KalVista Pharmaceuticals, Inc.), Underwriting Agreement (Rezolute, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, in which the Company is not the survivor, (ii) the Company, directly or indirectly, Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale of all or substantially all of its assets or a majority of its Common Stock is acquired by a third party, in each case, in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which all or substantially all of the holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% property, or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs), (iv) the Company, directly or indirectly, in one or more related transactions Company effects any reclassification, reorganization or recapitalization reclassification of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or (vcombination of shares of Common Stock covered by Section 9(a) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Company, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationabove) (each in any such case, a “Fundamental Transaction”), thenthen the Holder shall have the right thereafter to receive, upon any subsequent exercise of this Warrant, the Holder shall have the right to receivesame amount and kind of securities, for each Ordinary Share represented by each Warrant ADS that cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity in a Fundamental Transaction in which or the Company is not corporation purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall assume the survivor (obligation to deliver to the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant Holder, such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to purchase and/or receive (as the case may be), and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory subsequent transactions analogous to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 9 contracts
Samples: Credit Facility Agreement (Mobivity Holdings Corp.), Credit Facility Agreement (Mobivity Holdings Corp.), Credit Facility Agreement (Mobivity Holdings Corp.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock who tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company or (including v) the Company effects any Ordinary Shares underlying ADSsreclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, but not including any Ordinary Shares cash or ADSs held property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (the “Successor Entity”) to assume in writing all including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder, such Alternate Consideration as, in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to foregoing provisions, the Holder (without unreasonable delay) prior may be entitled to such Fundamental Transaction receive, and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of other obligations under this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 9 contracts
Samples: Warrant Agreement (Parkervision Inc), Subscription Receipt Agreement (McEwen Mining Inc.), Warrant Agreement (Innovation Pharmaceuticals Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity and in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) shall similarly apply to subsequent transactions analogous of a Fundamental Transaction type. Notwithstanding the foregoing, in the event of a Fundamental Transaction where the consideration payable to holders of Common Stock consists solely of cash, solely of Marketable Securities or a combination of cash and Marketable Securities, then this Warrant shall automatically be deemed to be exercised in full in a “cashless exercise” pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant Section 10 below effective immediately prior to and contingent upon the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 5 contracts
Samples: Securities Agreement (NEUROONE MEDICAL TECHNOLOGIES Corp), Underwriting Agreement (Atara Biotherapeutics, Inc.), Warrant Agreement (Helius Medical Technologies, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, in which the shareholders of the Company as of immediately prior to the transaction own less than a majority of the outstanding stock of the surviving entity, (ii) the Company, directly or indirectly, Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale of all or substantially all of its assets or a majority of its Common Stock is acquired by a third party, in each case, in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which all or substantially all of the holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by would result in the holders shareholders of 50% the Company immediately prior to such tender offer or more exchange offer owning less than a majority of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)stock after such tender offer or exchange offer, or (iv) the Company, directly or indirectly, in one or more related transactions Company effects any reclassification, reorganization or recapitalization reclassification of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or (vcombination of shares of Common Stock covered by Section 9(a) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Company, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationabove) (each in any such case, a “Fundamental Transaction”), thenthen the Holder shall have the right thereafter to receive, upon any subsequent exercise of this Warrant, the Holder shall have the right to receivesame amount and kind of securities, for each Ordinary Share represented by each Warrant ADS that cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity in a Fundamental Transaction in which or the Company is not corporation purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall assume the survivor (obligation to deliver to the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant Holder, such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to purchase and/or receive (as the case may be), and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory subsequent transactions analogous to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 5 contracts
Samples: Warrant Agreement (Nephros Inc), Warrant Agreement (Nephros Inc), Warrant Agreement (Nile Therapeutics, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the CompanyCompany (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) ADSs are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs), (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares ADSs or any compulsory share exchange pursuant to which the Ordinary Shares are ADSs is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares ADSs (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each underlying the Warrant ADS ADSs that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock ADSs of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS ADSs for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(e3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS ADSs acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction)required no additional consideration upon exercise, and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 5 contracts
Samples: Securities Agreement (AnPac Bio-Medical Science Co., Ltd.), Security Agreement (AnPac Bio-Medical Science Co., Ltd.), Securities Agreement (AnPac Bio-Medical Science Co., Ltd.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the CompanyCompany (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) ADSs are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs), (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares ADSs or any compulsory share exchange pursuant to which the Ordinary Shares are ADSs is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares ADSs (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock ADSs of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS ADSs for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, ADS in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS ADSs acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 4 contracts
Samples: Prefunded Warrant Agreement (Safe-T Group Ltd.), Prefunded Warrant Agreement (Safe-T Group Ltd.), Warrant Agreement (Safe-T Group Ltd.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, the Warrants are outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or the shareholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock who tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company or (including v) the Company effects any Ordinary Shares underlying ADSsreclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, but not including any Ordinary Shares cash or ADSs held property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 4.1.1 above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of the Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (the “Successor Entity”) to assume in writing all including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to foregoing provisions, the Holder (without unreasonable delay) prior may be entitled to such Fundamental Transaction receive, and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of other obligations under this Warrant) prior to such Fundamental Transaction. “Person” means any natural person, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares corporation, firm, joint venture, partnership, limited liability company, association, enterprise, trust or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stockother entity or organization, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction)or any government or political subdivision or any agency, and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereindepartment or instrumentality thereof.
Appears in 4 contracts
Samples: Warrant Agreement (Second Sight Medical Products Inc), Warrant Agreement (Clearsign Combustion Corp), Warrant Agreement (Second Sight Medical Products Inc)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, in which the Company is not the surviving entity, (ii) the Company, directly or indirectly, Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder Number of Warrant Shares (without regard to any limitation in Section 2(ethe case of clause (iii) on the exercise of this Warrant)above, the number of shares of capital stock of the successor or acquiring corporation or of the Company, if assuming it is the surviving corporationhad tendered, and any additional consideration the offeror had accepted, such Warrant Shares) (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) shall similarly apply to subsequent transactions analogous of a Fundamental Transaction type. Notwithstanding the foregoing, in the event of a Fundamental Transaction where the consideration payable to holders of Common Stock consists solely of cash, solely of Marketable Securities or a combination of cash and Marketable Securities, then this Warrant shall automatically be deemed to be exercised in full in a “cashless exercise” pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant Section 10 below effective immediately prior to and contingent upon the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 4 contracts
Samples: Warrant to Purchase Common Stock (Adicet Bio, Inc.), Underwriting Agreement (Adicet Bio, Inc.), Underwriting Agreement (Cabaletta Bio, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Shares, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and and/or any additional consideration (the “Alternate Consideration”Consideration “) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise Exercise price which applies the exercise price Exercise Price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 4 contracts
Samples: Securities Agreement (Akari Therapeutics PLC), Securities Agreement (Akari Therapeutics PLC), Securities Agreement (Akari Therapeutics PLC)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the CompanyCompany (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) ADSs are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs), (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares ADSs or any compulsory share exchange pursuant to which the Ordinary Shares are ADSs is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares ADSs (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each underlying the Warrant ADS ADSs that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e2(d) on the exercise of this Warrant), the number of shares of capital stock ADSs of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS ADSs for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e2(d) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS ADSs acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction)required no additional consideration upon exercise, and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 4 contracts
Samples: Security Agreement (Anchiano Therapeutics Ltd.), Pre Funded Warrant Agreement (SciSparc Ltd./Adr), Securities Agreement (SciSparc Ltd./Adr)
Fundamental Transactions. If, at any time while this any Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another PersonPerson (other than a merger solely for the purpose of changing the Company’s domicile to another state of the United States or solely with respect to a name change of the Company), (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or propertyproperty (other than a reclassification in which the Company’s stockholders remain the same), or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares shares of Common Stock (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this the applicable Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder Transaction (without regard to any limitation in Section 2(eSections 5(a) and 5(b) on the exercise of this Warrant), the number of shares of capital stock Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS shares of Common Stock for which this the applicable Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(eSections 5(a) and 5(b) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this its Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 4 contracts
Samples: Warrant Agency Agreement, Warrant Agency Agreement, Warrant Agency Agreement (Dolphin Entertainment, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) outstanding the CompanyCompany shall, directly or indirectly, in one or more related transactions effects transactions, (i) effect any merger or consolidation of the Company with or into another PersonPerson in which the shareholders of the Company prior to the effective date of such transaction own less than 66 2/3% of the issued and outstanding voting rights and equity interests of the surviving corporation following the date of such transaction, (ii) the Company, directly effect any sale of 30% or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all more of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, engage in any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)property, (iv) the Companyeffect any reorganization, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization reclassification of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or propertyproperty (other than as a result of a subdivision or combination of shares of Common Stock covered by Section 9(a) above), (v) engage in an acquisition after the date hereof by an individual or legal entity or "group" (as described in Rule 13d-5(b)(1) under the Exchange Act) of more than one-third of the voting rights or equity interests in the Company, (vi) replace more than one-half of the members of the Company's board of directors that is not approved by those individuals who are members of the board of directors on the date hereof (or other directors previously approved by such individuals); (vii) engage in a recapitalization, reorganization or other transaction involving the Company or any Subsidiary that constitutes or results in a transfer of more than one-half of the voting rights or equity interests in the Company; (viii) consummate a "Rule 13e-3 transaction" as defined in Rule 13e-3 under the Exchange Act with respect to the Company, or (vix) execute (or its controlling shareholders execute) of an agreement providing for or reasonably likely to result in any of the Company, directly or indirectly, foregoing events (in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitationany such case, a reorganization or recapitalization that requires "Fundamental Transaction"), then the approval Holder shall have the right thereafter to receive, at the option of the shareholders of the CompanyHolder, spin-off or scheme of arrangement(a) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall same amount and kind of securities, cash or property as it would have the right been entitled to receive, for each Ordinary Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Warrant Shares represented by each Warrant ADS for which then issuable upon exercise in full of this Warrant is exercisable immediately prior to (the "Alternate Consideration") or (b) cash within five Trading Days after such Fundamental Transaction election (without regard to any limitation in Section 2(e) or, if later, on the exercise effective date of the Fundamental Transaction), equal to the Black-Scholes value of the remaining then unexercised portion of this Warrant)Warrant on the date of such election. For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. The aggregate Exercise Price for this Warrant will not be affected by any such Fundamental Transaction, but the Company shall apportion such aggregate Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in In the event of a Fundamental Transaction in which Transaction, the Company is not or the survivor (successor or purchasing Person, as the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance case may be, shall execute with the provisions of this Section 3(e) pursuant to Holder a written agreements agreement in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.providing that:
Appears in 4 contracts
Samples: Warrant Agreement (Carrington Laboratories Inc /Tx/), Securities Agreement (Carrington Laboratories Inc /Tx/), Securities Agreement (Carrington Laboratories Inc /Tx/)
Fundamental Transactions. If, at any time while this Warrant is outstanding, the Warrants are outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger merger, amalgamation or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or the shareholders of the Company immediately prior to such merger, amalgamation or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger, amalgamation or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase pursuant to any tender offer, tender offer take-over bid or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock who tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the CompanyCompany consummates a stock purchase agreement or other business combination (including, directly without limitation, a reorganization, recapitalization, spin-off or indirectly, in one scheme of arrangement) with another Person whereby such other Person acquires more than the 50% of the voting power of the capital stock of the Company or more related transactions (v) the Company effects any reclassification, reorganization or recapitalization reclassification of the Ordinary Common Shares or any compulsory share exchange pursuant to which the Ordinary Common Shares are effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or (vcombination of Common Shares covered by Section 9(a) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Company, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationabove) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of the Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of the Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (the “Successor Entity”) to assume in writing all including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder, such Alternate Consideration as, in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to foregoing provisions, the Holder (without unreasonable delay) prior may be entitled to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transactionreceive, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account other obligations under the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereinWarrant.
Appears in 3 contracts
Samples: Warrant Agreement (Ur-Energy Inc), Warrant Agreement (Ur-Energy Inc), Warrant Agreement (Ur-Energy Inc)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, in which the shareholders of the Company as of immediately prior to the transaction own less than a majority of the outstanding stock of the surviving entity, (ii) the Company, directly or indirectly, Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale of all or substantially all of its assets or a majority of its Common Stock is acquired by a third party, in each case, in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which all or substantially all of the holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by would result in the holders shareholders of 50% the Company immediately prior to such tender offer or more exchange offer owning less than a majority of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)stock after such tender offer or exchange offer, or (iv) the Company, directly or indirectly, in one or more related transactions Company effects any reclassification, reorganization or recapitalization reclassification of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or (vcombination of shares of Common Stock covered by Section 9(a) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Company, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationabove) (each in any such case, a “Fundamental Transaction”), thenthen the Holder shall have the right thereafter to receive, upon any subsequent exercise of this Warrant, the Holder shall have the right to receivesame amount and kind of securities, for each Ordinary Share represented by each Warrant ADS that cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity in a Fundamental Transaction in which or the Company is not corporation purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall assume the survivor (obligation to deliver to the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant Holder, such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to purchase and/or receive (as the case may be), and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (b) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory subsequent transactions analogous to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 3 contracts
Samples: Master Exchange Agreement (Net Element, Inc.), Master Exchange Agreement (Net Element, Inc.), Unit Purchase Agreement (Net Element, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the CompanyCompany (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) and ADSs are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying and ADSs), (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or ADSs or any compulsory share exchange pursuant to which the Ordinary Shares are or ADSs is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares or ADSs (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each underlying the Warrant ADS ADSs that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock Ordinary Shares or ADSs of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS ADSs for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, Shares in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS ADSs acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction)) which required no additional consideration upon exercise, and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein. For the avoidance of doubt, if, at any time while this Warrant is outstanding, a Fundamental Transaction occurs, pursuant to the terms of this Section 3(d), the Holder shall not be entitled to receive more than one of (i) the consideration receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares for which this Warrant is exercisable immediately prior to such Fundamental Transaction, or (ii) the assumption by the Successor Entity of all of the obligations of the Company under this Warrant and the option to receive a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant.
Appears in 3 contracts
Samples: Underwriting Agreement (HW Electro Co., Ltd.), Underwriting Agreement (HW Electro Co., Ltd.), Underwriting Agreement (Yoshitsu Co., LTD)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 3 contracts
Samples: Securities Purchase Agreement (iTeos Therapeutics, Inc.), Securities Purchase Agreement (Enliven Therapeutics, Inc.), Underwriting Agreement (Monte Rosa Therapeutics, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, in which the shareholders of the Company as of immediately prior to the transaction own less than a majority of the outstanding shares of the surviving entity, (ii) the Company, directly or indirectly, Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale of all or substantially all of its assets or a majority of its Common Stock is acquired by a third party, in each case, in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which all or substantially all of the holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by would result in the holders shareholders of 50% the Company immediately prior to such tender offer or more exchange offer owning less than a majority of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)shares after such tender offer or exchange offer, or (iv) the Company, directly or indirectly, in one or more related transactions Company effects any reclassification, reorganization or recapitalization reclassification of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or (vcombination of Common Stock covered by Section 9(a) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Company, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationabove) (each in any such case, a “Fundamental Transaction”), thenthen the Holder shall have the right thereafter to receive, upon any subsequent exercise of this Warrant, the Holder shall have the right to receivesame amount and kind of securities, for each Ordinary Share represented by each Warrant ADS that cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of ); provided, however, that such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted continue to apply to such Alternate Consideration based on upon the amount occurrence of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in not enter into or be party to a Fundamental Transaction in which without the written consent of Holder. The Company is shall not effect any such Fundamental Transaction unless prior to or simultaneously with the survivor (consummation thereof, any successor to the “Successor Entity”) Company, surviving entity or the corporation purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall assume the obligation to assume in writing all of deliver to the obligations of the Company under this Warrant Holder, such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to purchase and/or receive (as the case may be), and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (d) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory subsequent transactions analogous to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 3 contracts
Samples: Warrant Agreement (Lm Funding America, Inc.), Warrant Agreement (Lm Funding America, Inc.), Warrant Agreement (Lm Funding America, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the CompanyCompany or any Subsidiary, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Common Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Common Shares, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Common Shares or any compulsory share exchange pursuant to which the Ordinary Common Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Common Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Common Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e1(f) on the exercise of this Warrant), the number of shares of capital common stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Common Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e1(f) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Common Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Common Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within thirty (30) days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however, that (i) if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of Directors, Holder shall only be entitled to receive from the Company or any Successor Entity, as of the date of consummation of such Fundamental Transaction, the same type or form of consideration (and in the same proportion) for the purchase of this Warrant, at the value per share of common stock, par value $0.0001 per share, (“Common Stock”) in the Fundamental Transaction for each Warrant Share underlying the unexercised portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; and (ii) for purposes of clarification, Holder shall not be required to exercise the Warrant or pay the exercise price thereof in order to receive such consideration. “Black Scholes Value” means the value of this Warrant based on the Black Scholes Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”) determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Expiration Date, (B) an expected volatility equal to the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the greater of (x) the last VWAP immediately prior to the public announcement of such Fundamental Transaction and (y) the last VWAP immediately prior to the consummation of such Fundamental Transaction, (D) a zero cost of borrow and (E) a remaining option time equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Expiration Date. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds within five Business Days of the Holder’s election (or, if later, on the effective date of the Fundamental Transaction). The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other transaction documents in accordance with the provisions of this Section 3(e4(b) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Common Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Common Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other transaction documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other transaction documents with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 3 contracts
Samples: Warrant Agent Agreement (Bone Biologics Corp), Warrant Agent Agreement (Pasithea Therapeutics Corp.), Warrant Agent Agreement (Pasithea Therapeutics Corp.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions transactions, effects any merger or consolidation of the Company with or into another Person, in which the Company is not the survivor or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting securities of the surviving entity, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale of all or substantially all of its assets or a majority of its Common Stock is acquired by a third party, in each case, in one or a series of related transactions, (iii) any, any direct or indirect, indirect purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Common Stock, or (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or (vcombination of shares of Common Stock covered by Section 8(a) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Company, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationabove) (each in any such case, a “Fundamental Transaction”), thenthen the Holder shall have the right thereafter to receive, upon any subsequent exercise of this Warrant, the Holder shall have the right to receivesame amount and kind of securities, for each Ordinary Share represented by each Warrant ADS that cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of ). The Company shall not effect any such Fundamental Transaction by a holder of unless any successor to the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior Company, surviving entity or the corporation purchasing or otherwise acquiring such assets or other appropriate corporation or Person shall assume the obligation to such Fundamental Transaction (without regard deliver to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exerciseHolder, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicableas, in such Fundamental Transactionaccordance with the foregoing provisions, the Holder may be entitled to receive, and the Company shall apportion other obligations under this Warrant. Notwithstanding the Exercise Price among foregoing, in the Alternate Consideration in a reasonable manner reflecting the relative value event of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then other than one in which a Successor Entity that is a publicly traded corporation (whose stock is quoted or listed for trading on a national securities exchange, including, but not limited to, the Holder New York Stock Exchange, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market or the Nasdaq Capital Market) assumes this Warrant such that the Warrant shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital the publicly traded common stock of such Successor Entity (or its parent entity) equivalent to Entity, at the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value request of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and Holder delivered before the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any thirtieth (30th) day after such Fundamental Transaction, the Company (or the Successor Entity Entity) shall succeed topurchase this Warrant from the Holder by paying to the Holder, and be substituted for within five (so that from and 5) Business Days after such request (or, if later, on the effective date of the Fundamental Transaction), an amount equal to the Black Scholes Value of the remaining unexercised portion of this Warrant on the effective date of such Fundamental Transaction, payable in cash; provided, however, that, if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of Directors, Holder shall only be entitled to receive from the Company or any Successor Entity, as of the date of consummation of such Fundamental Transaction, the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction. The provisions of this Warrant referring paragraph (c) shall similarly apply to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power subsequent transactions analogous of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereina Fundamental Transaction type.
Appears in 3 contracts
Samples: Purchase Agreement (Aptevo Therapeutics Inc.), Warrant Agreement (Novan, Inc.), Underwriting Agreement (Novan, Inc.)
Fundamental Transactions. IfIf the Company enters into or becomes a party to any Fundamental Transaction, at then the registered holder shall have the right thereafter to receive, upon exercise of the Warrant, the same amount and kind of securities, cash or property as it would have been entitled to receive upon the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, the holder of the number of Warrant Shares then issuable upon exercise in full of the Warrant without regard to any time while this limitations on exercise contained in the Warrant is outstanding(the “Alternate Consideration”). The Company shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity or the corporation purchasing or otherwise acquiring such assets or other appropriate corporation or Person shall assume the Warrant and the obligation to deliver to the registered holder, such Alternate Consideration as, in accordance with the foregoing provisions, the registered holder may be entitled to receive, and the other obligations under the Warrant. “Fundamental Transactions” means that (i) the CompanyCompany or any of its Subsidiaries shall, directly or indirectly, in one or more related transactions, (1) consolidate or merge with or into (whether or not the Company or any of its Subsidiaries is the surviving corporation) any other person unless immediately following the closing of such transaction or series of related transactions effects any merger or consolidation the persons holding more than 50% of the voting stock of the Company with prior to such closing continue to hold more than 50% of the voting stock of the Company following such closing or into another Person, (ii2) the Company, directly or indirectly, effects any salesell, lease, license, assignmentassign, transfer, conveyance convey or other disposition otherwise dispose of all or substantially all of its respective properties or assets to any other person, or (3) assist any other person in one or making a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sellpurchase, tender or exchange their shares for other securities, cash or property and has been offer that is accepted by the holders of more than 50% or more of the outstanding Ordinary Shares shares of voting stock of the Company (not including any Ordinary Shares underlying ADSs), (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization shares of voting stock of the Ordinary Shares Company held by the person or any compulsory share persons making or party to, or associated or affiliated with the persons making or party to, such purchase, tender or exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or propertyoffer), or (v4) the Company, directly or indirectly, in one or more related transactions consummates consummate a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, spin-off recapitalization, or scheme of arrangement) with another Person or group of Persons any other person whereby such other Person or group person acquires more than 50% of the outstanding Ordinary Shares shares of voting Stock of the Company (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs shares of voting stock of the Company held by the other Person person or other Persons persons making or party to, or associated or affiliated with the other Persons persons making or party to, such stock or share purchase agreement or other business combination) excluding any equity financing transaction in which shares of voting stock are issued, or (each 5) (I) reorganize, recapitalize or reclassify the Common Stock, (II) effect or consummate a “Fundamental Transaction”stock combination, reverse stock split or other similar transaction involving the Common Stock or (III) make any public announcement or disclosure with respect to any stock combination, reverse stock split or other similar transaction involving the Common Stock (including, without limitation, any public announcement or disclosure of (x) any potential, possible or actual stock combination, reverse stock split or other similar transaction involving the Common Stock or (y) board or stockholder approval thereof, or the intention of the Company to seek board or stockholder approval of any stock combination, reverse stock split or other similar transaction involving the Common Stock), thenor (ii) any “person” or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act and the rules and regulations promulgated thereunder) is or shall become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), upon any subsequent exercise directly or indirectly, of this Warrant, 50% of the Holder shall have the right to receive, for each Ordinary Share aggregate ordinary voting power represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital issued and outstanding voting stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 3 contracts
Samples: Security Agreement (Towerstream Corp), Security Agreement (Towerstream Corp), Security Agreement (Towerstream Corp)
Fundamental Transactions. If, at any time while this Warrant is outstanding, the Warrants are outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the survivor and the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least fifty percent (50%) of the voting securities of the surviving entity, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale of all or substantially all of its assets or at least a majority of its Common Stock is acquired by a third party, in each case, in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which all or substantially all of the holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% property, or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs), (iv) the Company, directly or indirectly, in one or more related transactions Company effects any reclassification, reorganization or recapitalization reclassification of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders shares of the Company, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a)) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then the Holder shall have the right to thereafter receive, for each Ordinary Share represented by each upon exercise of any Warrant, in lieu of any Warrant ADS that Shares, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of such Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not affect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity in a Fundamental Transaction in which or the Company is not corporation purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall assume the survivor (obligation to deliver to the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant Holder, such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to purchase and/or receive (as the case may be), and the other obligations under any Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory subsequent transactions analogous to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 2 contracts
Samples: Warrant Agreement (Celator Pharmaceuticals Inc), Warrant Agreement (Celator Pharmaceuticals Inc)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the CompanyCompany (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) ADSs are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs), (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares ADSs or any compulsory share exchange pursuant to which the Ordinary Shares are ADSs is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares ADSs (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each underlying the Warrant ADS ADSs that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock ADSs of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS ADSs for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company's control, including not approved by the Company's Board of Directors, Holder shall only be entitled to receive from the Company or any Successor Entity, as of the date of consummation of such Fundamental Transaction, the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders of Ordinary Shares or ADSs of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Ordinary Shares and ADSs are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction. “Black Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”) determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the greater of (x) the last VWAP immediately prior to the public announcement of such Fundamental Transaction and (y) the last VWAP immediately prior to the consummation of such Fundamental Transaction and (D) a remaining option time equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds within five Business Days of the Holder’s election (or, if later, on the effective date of the Fundamental Transaction). The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(e3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS ADSs acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction)required no additional consideration upon exercise, and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 2 contracts
Samples: Warrant Agreement (Therapix Biosciences Ltd.), Warrant Agreement (Therapix Biosciences Ltd.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the CompanyCompany or any Subsidiary, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)shares of Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares shares of Common Stock are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares shares of Common Stock (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant)Holder, the number of shares of capital common stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant)Transaction. For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within thirty (30) days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of Directors, Holder shall only be entitled to receive from the Company or any Successor Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided, further, that if holders of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders of Common Stock will be deemed to have received common stock of the Successor Entity (which Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value” means the value of this Warrant based on the Black Scholes Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”) determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period beginning on the Trading Day immediately preceding the announcement of the applicable Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section 4(b) and (D) a remaining option time equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds within five Business Days of the Holder’s election (or, if later, on the effective date of the Fundamental Transaction). The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other transaction documents in accordance with the provisions of this Section 3(e4(b) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other transaction documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other transaction documents with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 2 contracts
Samples: Security Agreement (60 Degrees Pharmaceuticals, Inc.), Security Agreement (60 Degrees Pharmaceuticals, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance transfer or other disposition to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 3(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock Common Stock or other equity securities of the successor or acquiring corporation (or ultimate parent thereof) or of the Company, if it is the surviving corporation, as applicable, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 2 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 2 contracts
Samples: Underwriting Agreement (Aileron Therapeutics, Inc.), Common Stock Purchase Warrant (Aileron Therapeutics, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger merger, amalgamation or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity and in which the shareholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, share capital tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the share capital of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the CompanyCompany consummates a share purchase agreement or other business combination (including, directly without limitation, a reorganization, recapitalization, spin-off or indirectlyscheme of arrangement) with another Person whereby such other Person acquires more than the 50% of the voting power of the share capital of the Company (except for any such transaction in which the shareholders of the Company immediately prior to such transaction maintain, in one or more related transactions substantially the same proportions, the voting power of such Person immediately after the transaction), (v) the Company effects any reclassification, reorganization or recapitalization reclassification of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or combination of shares of Ordinary Shares covered by Section 9(a) above) or (vvi) the CompanyCompany effects any other event or transaction similar to the foregoing (in any such case, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Company, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that would have been issuable upon such exercise immediately at least ten (10) Trading Days prior to the occurrence consummation of such Fundamental Transaction, at the option of Company shall provide written notice to the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporationHolder, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which if this Warrant is exercisable immediately not fully exercised prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise consummation of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) may be exercised pursuant to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e4(b) pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant hereof immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory without giving effect to any beneficial ownership limitation set forth in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereinSection 11 hereof.
Appears in 2 contracts
Samples: Warrant Agreement (Mesoblast LTD), Warrant Agreement (Mesoblast LTD)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity and in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the shares of Common Stock are effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise ). The provisions of this Warrant). For purposes of any such exercise, the determination of the Exercise Price paragraph (c) shall be appropriately adjusted to similarly apply to such Alternate Consideration based on the amount subsequent transactions analogous of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 2 contracts
Samples: Pre Funded Warrant to Purchase Common Stock (Elicio Therapeutics, Inc.), Underwriting Agreement (Elicio Therapeutics, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, If (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the survivor or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50.1% of the voting securities of the surviving entity, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition distribution of all or substantially all of its assets is acquired by a third party, in each case, in one or a series of related transactions, (iii) any, any direct or indirect, indirect purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which at least a majority of the holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)property, (iv) the Company, directly or indirectly, in one or more related transactions transactions, effects any reclassificationreorganization, reorganization recapitalization or recapitalization reclassification of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or propertyproperty (other than as a result of a subdivision or combination of shares of Common Stock covered by Section 4.1 above), or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons person whereby such other Person or group person acquires more than 50% of the outstanding Ordinary Shares shares of Common Stock (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs shares of Common Stock held by the other Person person or other Persons persons making or party to, or associated or affiliated with the other Persons persons making or party to, such stock or share purchase agreement or other business combination) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then the Holder registered holder shall have the right thereafter to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of the Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of the Warrant without regard to any limitation limitations on exercise contained in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration Warrant (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity in a Fundamental Transaction in which or the Company is not corporation purchasing or otherwise acquiring such assets or other appropriate corporation or Person shall assume the survivor (obligation to deliver to the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant registered holder, such Alternate Consideration as, in accordance with the provisions of this Section 3(e) pursuant foregoing provisions, the registered holder may be entitled to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transactionreceive, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account other obligations under the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereinWarrant.
Appears in 2 contracts
Samples: Warrant Agreement (Aastrom Biosciences Inc), Class B Warrant Agreement (Aastrom Biosciences Inc)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity and in which the shareholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the shareholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary reclassification of the Common Shares or ADSs held any compulsory share exchange pursuant to which the Common Shares are effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of Common Shares covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 2 contracts
Samples: Underwriting Agreement (Zymeworks Inc.), Underwriting Agreement (Zymeworks Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Personentity, in which the shareholders of the Company as of immediately prior to the transaction own less than a majority of the outstanding stock of the surviving entity, (ii) the Company, directly or indirectly, Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, any tender offer or exchange offer (whether by the Company or another Personperson or entity) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% property, or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs), (iv) the Company, directly or indirectly, in one or more related transactions Company effects any reclassification, reorganization or recapitalization reclassification of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders shares of the Company, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 7 above) (each each, a “Fundamental Transaction”), thenthen the Holder shall have the right thereafter to receive, upon any subsequent exercise of this Warrant, the same amount and kind of securities, cash or property, as applicable, as the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if the Holder had been, immediately prior to such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Exercise Shares represented then issuable upon exercise in full of such Warrant. Following any transaction contemplated by each Warrant ADS this Section 9, the term Exercise Shares shall be deemed to refer to the shares for which this Warrant is thereafter exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on accordance with the exercise of this Warrant)provisions hereof. For purposes of any such exerciseIn addition, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If if holders of Ordinary Shares or ADSs Common Stock are given any a choice as to the securities, cash cash, or property to be received in a Fundamental TransactionTransaction (including a right to elect to receive any particular one or combination of more than one of the foregoing), then the Holder shall be given the same choice as to the Alternate Consideration it receives of consideration upon any exercise of this Warrant following such Fundamental Transaction, which choice of consideration can be made at the time of exercise at any time prior to the expiration of the Exercise Period. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) unless prior to assume in writing all of the obligations of the Company under this Warrant in accordance or simultaneously with the consummation thereof the successor corporation (if other than the Company) resulting from such Fundamental Transaction shall assume the Company’s obligations hereunder. The provisions of this Section 3(e) pursuant 9 shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such successive Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereinTransactions.
Appears in 2 contracts
Samples: Underwriting Agreement (Polymedix, Inc), Underwriting Agreement (Polymedix, Inc)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another PersonPerson in which the Company is not the surviving entity or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, a majority of the outstanding voting securities of the Successor Entity, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which the holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more a majority of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or combination of shares of Common Stock covered in Section 2(a) above or this Section 2(b) below) or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization reorganization, recapitalization, or recapitalization that requires the approval of the shareholders of the Company, spin-off or scheme of arrangementoff) with another Person or group of Persons whereby such other Person or group acquires more than 5060% of the outstanding Ordinary Shares shares of Common Stock (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant)Holder, the number of shares of capital stock Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporationSuccessor Entity, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant)Transaction. For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity Notwithstanding anything to the contrary in this Section 2(b), in the event of a Fundamental Transaction in which the Company is not Company’s shareholders receive, as consideration for the survivor (transaction, primarily securities of the “Successor Entity”) to assume , other than a transaction in writing all of the obligations of the Company under which a Successor Entity that is a publicly traded corporation whose stock is quoted or listed for trading on an Eligible Market assumes this Warrant in accordance with such that the provisions Warrant shall be exercisable for the publicly traded Common Stock of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to such Successor Entity, the Holder (without unreasonable delay) prior to such Fundamental Transaction and Successor Entity shall, at the option Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the HolderFundamental Transaction, deliver purchase this Warrant from the Holder by paying to the Holder in exchange for this Warrant a security an amount of cash equal to the Black Scholes Value of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise remaining unexercised portion of this Warrant (without regard to any limitations on the exercise date of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 2 contracts
Samples: Warrant Agreement (Hooper Holmes Inc), Warrant Agreement (Hooper Holmes Inc)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the CompanyCompany (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares Common Stock (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each underlying the Warrant ADS Shares that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e2(d) on the exercise of this Warrant), the number of shares of capital stock Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e2(d) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction)required no additional consideration upon exercise, and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 2 contracts
Samples: Common Stock Purchase Warrant (Basanite, Inc.), Common Stock Purchase Warrant (Basanite, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, indirectly in one or more related transactions transactions, effects any merger or consolidation of the Company with or into another Person, in which the Company is not the surviving entity or in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company, directly or indirectlyindirectly in one or more related transactions, effects any sale, lease, license, assignment, transfer, conveyance or other disposition to another Person of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, indirectly in one or more related transactions effects any reclassificationtransactions, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company, directly or indirectly in one or more related transactions, effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder Number of Warrant Securities then issuable upon exercise in full of this Warrant (including any Distributions or Purchase Rights then held in abeyance pursuant to Sections 9(b) or 9(c) above) without regard to any limitation limitations on exercise contained in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration 11 hereof (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any Fundamental Transaction in which the Company is not the surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely in the form of cash and the Company provides for the simultaneous “cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the Company) shall assume the obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. If the Company undertakes a Fundamental Transaction in which the Company is not the survivor (surviving entity and the “Successor Entity”) to assume in writing all Alternate Consideration includes securities of the obligations of another Person, then the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) shall provide that, prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and simultaneously with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), any successor to the Company, surviving entity or other Person (including any purchaser of assets of the Company) shall assume the obligation to deliver to the Holder such Alternate Consideration as the Holder is entitled to receive in accordance with the foregoing provisions, and which is reasonably satisfactory in form and substance to assume the Holderother obligations under this Warrant. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the The provisions of this Warrant referring paragraph (d) shall similarly apply to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power subsequent transactions analogous of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereina Fundamental Transaction type.
Appears in 2 contracts
Samples: Warrant Agreement (Inhibikase Therapeutics, Inc.), Warrant Agreement (Inhibikase Therapeutics, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock who tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (d) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Heron Therapeutics, Inc. /De/), Securities Purchase Agreement (Heron Therapeutics, Inc. /De/)
Fundamental Transactions. (a) If, at any time while this Warrant Note is outstanding, (i) the Company, directly or indirectly, in one or more related transactions transactions, effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of the assets of the Company and its assets subsidiaries, taken as a whole, to any Person other than one of the Company’s subsidiaries in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of fifty percent (50% %) or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions transactions, effects any reclassification, reorganization or recapitalization of the Ordinary Shares Common Stock (other than changes resulting from a subdivision or combination thereof) or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions transactions, consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than fifty percent (50% %) of the outstanding Ordinary Shares shares of Common Stock (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise conversion of this WarrantNote, the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS share of Common Stock that would have been issuable upon such exercise conversion immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder Transaction (without regard to any limitation in Section 2(e) 3.3 on the exercise conversion of this WarrantNote), the number of shares of capital stock Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS shares of Common Stock for which this Warrant Note is exercisable convertible immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) 3.3 on the exercise conversion of this WarrantNote). For purposes of any such exerciseconversion, the determination of the Exercise Price Conversion Rate shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, (1) share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price Conversion Rate among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise conversion of this Warrant Note following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) Entity to assume in writing all of the obligations of the Company under this Warrant in accordance with Note, the provisions of this Section 3(e) other Transaction Documents, and any document ancillary hereto or thereto, pursuant to written agreements in form and substance reasonably satisfactory to the Holder Required Holders and approved by such Holders (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the HolderHolder of this Note, deliver to the Holder in exchange for this Warrant Note a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant Note which is exercisable convertible for a corresponding number of shares of capital stock of such Successor Entity (or its parent entityParent Entity) equivalent to the Ordinary Shares represented by each Warrant ADS shares of Common Stock acquirable and receivable upon exercise conversion of this Warrant Note (without regard to any limitations on the exercise conversion of this WarrantNote) prior to such Fundamental Transaction, and with an exercise price a conversion rate which applies the exercise price Conversion Rate hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price conversion rate being for the purpose of protecting the economic value of this Warrant Note immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. At and after the effective time of such Fundamental Transaction, (A) the Holder shall continue to have the right to determine the form of consideration to be paid or delivered in accordance with Section 3.4, (B)(1) any amount payable in cash upon conversion of this Note in accordance with Section 3 shall continue to be payable in cash, (2) any shares of Common Stock that the Company would have been required to deliver upon conversion of this Note in accordance with Section 3 shall instead be deliverable in the corresponding amount of Alternate Consideration that a holder of that number of shares of Common Stock would have received in such Fundamental Transaction and (3) the Closing Sale Price for the purposes Section 3.4 shall be calculated based on the value of such Alternate Consideration; provided that, if shares of capital stock of the relevant Successor Entity (or its Parent Entity) are not then traded on any securities exchange or trading market, the Closing Sale Price for the purposes Section 3.4 shall be deemed to be the greater of the per share price of the capital stock of such Successor Entity (or its Parent Entity) (I) as determined at the time of such Fundamental Transaction and (II) as determined by the latest transaction or series of related transactions pursuant to which such Successor Entity (or its Parent Entity) issues and sells shares of its capital stock (including securities convertible or exchangeable into shares of such capital stock) with the principal purpose of raising capital. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant Note and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant Note and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 2 contracts
Samples: Subordinated Note Agreement (Venus Concept Inc.), Subordinated Note Agreement (Venus Concept Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock who tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder, such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 2 contracts
Samples: 3(a)(9) Exchange Agreement (Eledon Pharmaceuticals, Inc.), Settlement Agreement (Kaleyra, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity and in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs shares of the Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationcombination and excluding shares acquired upon conversion of any currently outstanding convertible securities in accordance with the terms thereof as in effect on the date hereof) or (v) the Company effects any reclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of the Common Stock covered by Section 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) shall similarly apply to subsequent transactions analogous of a Fundamental Transaction type. Notwithstanding the foregoing, in the event of a Fundamental Transaction where the consideration payable to holders of the Common Stock consists solely of cash, solely of Marketable Securities or a combination of cash and Marketable Securities, then this Warrant shall automatically be deemed to be exercised in full in a “cashless exercise” pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant Section 10 below effective immediately prior to and contingent upon the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 2 contracts
Samples: Security Agreement (NEUROONE MEDICAL TECHNOLOGIES Corp), Security Agreement (NEUROONE MEDICAL TECHNOLOGIES Corp)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Baker Bros. Advisors Lp), Security Agreement (VYNE Therapeutics Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock who tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (x) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (y) prior to, simultaneously with or promptly following the consummation thereof, any successor to assume in writing all the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder, such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 2 contracts
Samples: Underwriting Agreement (89bio, Inc.), Securities Purchase Agreement (ImmunoGen, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the CompanyCompany (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares Common Stock (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each underlying the Warrant ADS Shares that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e3(e) on the exercise of this Warrant), the number of shares of capital stock Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e3(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(e3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction)required no additional consideration upon exercise, and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 2 contracts
Samples: Common Stock Purchase Warrant (Basanite, Inc.), Common Stock Purchase Warrant (Basanite, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets following occur in one or a series of related transactions: (i) an acquisition after the Closing Date by an individual or legal entity or “group” (as described in Rule 13d-5(b)(1), other than any Purchaser, under the Exchange Act) of fifty percent (50%) or more of the voting rights or voting equity interests in the Corporation; (ii) Continuing Directors cease to constitute more than one-half (1/2) of the members of the Board, other than in accordance with Sections 8 or 9(c) of the Certificate of Designations and/or the Side Letter; (iii) anya merger or consolidation of the Corporation or any Significant Subsidiary or a sale of all or substantially all of the assets of the Corporation or any Significant Subsidiary, direct unless immediately following such transaction or indirectseries of transactions, purchase offerthe holders of the Corporation’s securities immediately prior to the first such transaction continue to hold at least one-half (1/2) of the voting rights or voting equity interests in of the surviving entity or acquirer of such assets; (iv) a recapitalization, reorganization or other similar transaction involving the Corporation or any Significant Subsidiary that constitutes or results in a transfer of more than one-half of the voting rights or voting equity interests in the Corporation; (v) consummation of a “Rule 13e-3 transaction” as defined in Rule 13e-3 under the Exchange Act with respect to the Corporation; (vi) any tender offer or exchange offer (whether by the Company Corporation or another Person, other than any Purchaser) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by as a result of which the holders Persons who own Common Stock immediately prior to the launch of 50% such tender offer or more exchange offer do not own a majority of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs), (iv) equity interests of the CompanyCorporation, directly or indirectly, in one or more related transactions immediately after the consummation thereof; (vii) the Corporation effects any reclassification, reorganization or recapitalization reclassification of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, ; or (vviii) the Company, execution by the Corporation of an agreement directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval indirectly providing for any of the shareholders of the Companyforegoing events (in any such case, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”) (provided that no action taken for the purpose of changing the Corporation’s jurisdiction of incorporation pursuant to Section 4.19 of the Purchase Agreement or otherwise specifically contemplated by Section 4.19 or Section 4.20 of the Purchase Agreement for the purposes set forth therein shall constitute a Fundamental Transaction), thenthen the Holder shall have the right thereafter to receive, upon any subsequent exercise of this Warrant, the Holder shall have the right to receivesame amount and kind of securities, for each Ordinary Share represented by each Warrant ADS that cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares Warrant Shares then issuable upon exercise in full of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration this Warrant (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS ). The aggregate Exercise Price for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to will not be affected by any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and but the Company shall apportion the such aggregate Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in In the event of a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity Company or the successor or purchasing Person, as the case may be, shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant execute with the same effect as if such Successor Entity had been named as the Company herein.Holder a written agreement providing that:
Appears in 2 contracts
Samples: Securities Agreement (Paradigm Holdings, Inc), Securities Agreement (Paradigm Holdings, Inc)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, in which the Company is not the surviving entity, (ii) the Company, directly or indirectly, Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder Number of Warrant Shares (without regard to any limitation in Section 2(ethe case of clause (iii) on the exercise of this Warrant)above, the number of shares of capital stock of the successor or acquiring corporation or of the Company, if assuming it is the surviving corporationhad tendered, and any additional consideration the offeror had accepted, such Warrant Shares) (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) shall similarly apply to subsequent transactions analogous of a Fundamental Transaction type. Notwithstanding the foregoing, in the event of a Fundamental Transaction where the consideration payable to holders of Common Stock consists solely of cash, solely of Marketable Securities or a combination of cash and Marketable Securities, then this Warrant shall automatically be deemed to be exercised in full in a “cashless exercise” pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant Section 10 below effective immediately prior to and contingent upon the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.NY\5662481.1
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Personentity, in which the Company is not the survivor or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting securities of the surviving entity, (ii) the Company, directly or indirectly, Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale of all or substantially all of its assets or a majority of its Common Shares is acquired by a third party, in each case, in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, any tender offer or exchange offer (whether by the Company or another Personentity or person) is completed pursuant to which all or substantially all of the holders of Ordinary Common Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% property, or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs), (iv) the Company, directly or indirectly, in one or more related transactions Company effects any reclassification, reorganization or recapitalization reclassification of the Ordinary Common Shares or any compulsory share exchange pursuant to which the Ordinary Common Shares are effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or (vcombination of shares of Common Shares covered by Section h(1) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Company, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationabove) (each in any such case, a “Fundamental Transaction”), thenthen the Holder shall have the right thereafter to receive, upon any subsequent exercise of this Warrant, the Holder shall have the right to receivesame amount and kind of securities, for each Ordinary Share represented by each Warrant ADS that cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity in a Fundamental Transaction in which or the Company is not corporation purchasing or otherwise acquiring such assets shall assume the survivor (obligation to deliver to the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(esubparagraph (3) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is the Warrants are outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Personperson (other than a merger or consolidation with another corporation in which the Company is the surviving corporation and which does not result in any reclassification or change—other than a change in par value, or from par value to no par value, or from no par value to par value), or as a result of a subdivision or combination—of outstanding Common Stock issuable upon such exercise, and which is not subject to Subsection (iii) or (v) below), (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Personperson) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person person or group of Persons persons whereby such other Person person or group acquires more than 50% of the outstanding Ordinary Shares shares of Common Stock (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs shares of Common Stock held by the other Person person or other Persons persons making or party to, or associated or affiliated with the other Persons persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this a Warrant, the Registered Holder of each Warrant shall have the right to receive, for each Ordinary Share represented by each Warrant ADS share of Common Stock that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Registered Holder (without regard to any limitation in Section 2(e) 3.4 on the exercise of this Warrantthe Warrants), the number of shares of capital stock Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS shares of Common Stock for which this a Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) 3.4 on the exercise of this Warrantthe Warrants). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the each Registered Holder shall be given the same choice as to the Alternate Consideration it such Registered Holder receives upon any exercise of this a Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company shall, at a Registered Holder’s option, exercisable at any time prior to the consummation of the Fundamental Transaction, purchase such Registered Holder’s Warrant immediately prior to the consummation of such Fundamental Transaction from the Registered Holder by paying cash by wire transfer of immediately available funds in an amount equal to the Black Scholes Value of the remaining unexercised portion of such Registered Holder’s Warrant immediately prior to the consummation of such Fundamental Transaction. “Black Scholes Value” means the value of a Warrant based on the Black and Scholes Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”) determined immediately prior to the consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Expiration Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg as of the trading day immediately following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the sum of the price per share of Common Stock being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction (the “FMV”) and (D) a remaining option time equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Expiration Date. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this each Warrant in accordance with the provisions of this Section 3(e) 4.3 pursuant to written agreements in form and substance reasonably satisfactory to the Registered Holders and approved by the Registered Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the each Registered Holder, deliver to the such Registered Holder in exchange for this such Registered Holder’s Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this such Registered Holder’s Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS shares of Common Stock acquirable and receivable upon exercise of this such Warrant (without regard to any the limitations on the exercise of this Warrantset forth in Section 3.4) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price Exercise Price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this such Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Registered Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Agreement and each Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Agreement and each Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, including, for the sake of clarity, prior to the Exercise Date, (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity and in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 1 contract
Samples: Security Agreement (Rezolute, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (d) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory subsequent transactions analogous to the Holder (without unreasonable delay) prior to such a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 1 contract
Samples: Warrant Agreement (Neurogene Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the CompanyCompany (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) ADSs are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs), (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares ADSs or any compulsory share exchange pursuant to which the Ordinary Shares are ADSs is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares ADSs (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each underlying the Warrant ADS ADSs that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock ADSs of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS ADSs for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of Directors, Holder shall only be entitled to receive from the Company or any Successor Entity, as of the date of consummation of such Fundamental Transaction, the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders of Ordinary Shares or ADSs of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Ordinary Shares and ADSs are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided, further, that if holders of Ordinary Shares or ADSs are not offered or paid any consideration in such Fundamental Transaction, such holders of Ordinary Shares or ADSs will be deemed to have received Ordinary Shares or ADSs of the Successor Entity (which entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”) determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the greater of (x) the last VWAP immediately prior to the public announcement of such Fundamental Transaction and (y) the last VWAP immediately prior to the consummation of such Fundamental Transaction and (D) a remaining option time equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds within five Business Days of the Holder’s election (or, if later, on the effective date of the Fundamental Transaction). The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(e3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS ADSs acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction)required no additional consideration upon exercise, and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50.0% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted capital stock who tender shares representing equal to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more than 50.0% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person acquires equal to or group acquires more than 5050.0% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as Holder would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction as if Holder had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder, such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(e9(c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, If (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the survivor or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50.1% of the voting securities of the surviving entity, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition distribution of all or substantially all of its assets to a third party, in each case, in one or a series of related transactions, (iii) any, any direct or indirect, indirect purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which at least holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) a majority of the outstanding shares of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)property, (iv) the Company, directly or indirectly, in one or more related transactions transactions, effects any reclassificationreorganization, reorganization recapitalization or recapitalization reclassification of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or propertyproperty (other than as a result of a subdivision or combination of shares of Common Stock covered by Section 4.1 above), or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons person whereby such other Person or group person acquires more than 50% of the outstanding Ordinary Shares shares of Common Stock (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs shares of Common Stock held by the other Person person or other Persons persons making or party to, or associated or affiliated with the other Persons persons making or party to, such stock or share purchase agreement or other business combination) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then the Holder registered holder shall have the right thereafter to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of the Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of the Warrant without regard to any limitation limitations on exercise contained in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration Warrant (the “Alternate Consideration”). The Company shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity or the corporation purchasing or otherwise acquiring such assets or other appropriate corporation or Person shall assume the Warrant and the obligation to deliver to the registered holder, such Alternate Consideration as, in accordance with the foregoing provisions, the registered holder may be entitled to receive, and the other obligations under the Warrant. Notwithstanding the foregoing at the request of the registered holder delivered at any time commencing on the earlier to occur of the public disclosure of any Fundamental Transaction or the consummation of any Fundamental Transaction through the date that is ninety (90) receivable as a result days after the later to occur of (i) the public disclosure of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction , (without regard to any limitation in Section 2(eii) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), Transaction and which is reasonably satisfactory in form and substance to (iii) the Holder. Upon the occurrence registered holder becoming aware of any such Fundamental TransactionTransaction if such Fundamental Transaction was not publicly disclosed, the Company or the Successor Entity (as the case may be) shall succeed to, and be substituted for (so that purchase the Warrant from and after the registered holder on the date of such request by paying to the registered holder cash in an amount equal to the Black Scholes Value (as defined below). For purposes hereof, “Black Scholes Value” means the value of the unexercised portion of the Warrant remaining on the date of the registered holder’s request pursuant, which value is calculated using the Black Scholes Option Pricing Model obtained from the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the greater of (1) the highest Closing Sale Price of the Common Stock during the period beginning on the Trading Day immediately preceding the earlier to occur of the public disclosure or consummation of the applicable Fundamental TransactionTransaction and ending on the Trading Day of the registered holder’s request pursuant to this Section and (2) the sum of the price per share being offered in cash in the applicable Fundamental Transaction (if any) plus the value of the non-cash consideration being offered in the applicable Fundamental Transaction (if any), (ii) a strike price equal to the provisions Exercise Price in effect on the of date of the registered holder’s request pursuant to this Section, (iii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the greater of (1) the remaining term of the Warrant as of the date of the registered holder’s request pursuant to this Section and (2) the remaining term of this Warrant referring as of the date of consummation of the applicable Fundamental Transaction or as of the date of the registered holder’s request pursuant to this Section if such request is prior to the “Company” shall refer instead date of the consummation of the applicable Fundamental Transaction and (iv) an expected volatility equal to the Successor Entity), greater of 100% and may exercise every right and power the 30 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Company and shall assume all Trading Day immediately following the earlier to occur of the obligations public disclosure or consummation of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereinapplicable Fundamental Transaction.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the survivor and the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least fifty percent (50%) of the voting securities of the surviving entity, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale of all or substantially all of its assets or at least a majority of its Common Stock is acquired by a third party, in each case, in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which all or substantially all of the holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% property, or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs), (iv) the Company, directly or indirectly, in one or more related transactions Company effects any reclassification, reorganization or recapitalization reclassification of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders shares of the Company, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a)) (each in any such case, a “Fundamental Transaction”), thenthen the Holder shall thereafter receive, upon any subsequent exercise of this Warrant, in lieu of any Warrant Shares, the Holder shall have the right to receivesame amount and kind of securities, for each Ordinary Share represented by each Warrant ADS that cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not affect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity in a Fundamental Transaction in which or the Company is not corporation purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall assume the survivor (obligation to deliver to the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant Holder, such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to purchase and/or receive (as the case may be), and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory subsequent transactions analogous to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder number of Warrant Shares then issuable upon exercise in full of this Warrant (including any Distributions or Purchase Rights then held in abeyance pursuant to Section 9(b) or 9(c) hereof) without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory subsequent transactions analogous to the Holder (without unreasonable delay) prior to such a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 1 contract
Samples: Securities Purchase Agreement (Aerovate Therapeutics, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the CompanyCompany (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) ADSs are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs), (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares ADSs or any compulsory share exchange pursuant to which the Ordinary Shares are ADSs is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares ADSs (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each underlying the Warrant ADS ADSs that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock ADSs of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS ADSs for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS ADSs acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction)required no additional consideration upon exercise, and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 1 contract
Samples: Placement Agent American Depositary Shares Purchase Warrant (Genetic Technologies LTD)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, in which the Company is not the surviving entity, (ii) the Company, directly or indirectly, Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction 54 maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder Number of Warrant Shares (without regard to any limitation in Section 2(ethe case of clause (iii) on the exercise of this Warrant)above, the number of shares of capital stock of the successor or acquiring corporation or of the Company, if assuming it is the surviving corporationhad tendered, and any additional consideration the offeror had accepted, such Warrant Shares) (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) shall similarly apply to subsequent transactions analogous of a Fundamental Transaction type. Notwithstanding the foregoing, in the event of a Fundamental Transaction where the consideration payable to holders of Common Stock consists solely of cash, solely of Marketable Securities or a combination of cash and Marketable Securities, then this Warrant shall automatically be deemed to be exercised in full in a “cashless exercise” pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant Section 10 below effective immediately prior to and contingent upon the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 1 contract
Samples: Underwriting Agreement (Terns Pharmaceuticals, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another PersonPerson the result of which is that the holders of a majority of voting power in the Company immediately prior to consummation of such transactions are no longer the holders of such majority voting power, (ii) the CompanyCompany (or any Subsidiary), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its the assets of the Company in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of greater than 50% or more of the outstanding Ordinary Shares shares of Common Stock or greater than 50% of the outstanding shares of Class B common stock, par value $0.0001 per share, of the Company (including any Ordinary Shares underlying ADSs“Class B Common Stock”), (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization (excluding stock splits or consolidations) of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off off, merger or scheme of arrangement) (but excluding any transaction occurring pursuant to a definitive agreement entered into by the Company within 60 calendar days following the Issue Date hereof pursuant to a letter of intent that the Company executed prior to the Issue Date hereof in respect of any proposed merger, acquisition, or strategic transaction) with another Person or group of Persons whereby such other Person or group acquires more greater than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares shares of Common Stock or ADSs held by greater than 50% of the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) outstanding shares of Class B Common Stock (each of (i) through (v), a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital common stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for added to the term “Company” under this Warrant (so that from and after the date occurrence or consummation of such Fundamental Transaction, the provisions each and every provision of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to each of the Company and the Successor EntityEntity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein.
Appears in 1 contract
Samples: Pre Funded Warrant Agreement (Banzai International, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, issued and outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any amalgamation, merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity and in which the shareholders of the Company immediately prior to such amalgamation, merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such amalgamation, merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, share capital tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital shares of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital shares of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the shareholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary reclassification of the Common Shares or ADSs held any compulsory share exchange pursuant to which the Common Shares are effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of Common Shares covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the The Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of not effect any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 1 contract
Samples: Securities Agreement (Milestone Pharmaceuticals Inc.)
Fundamental Transactions. If, at any time while this Warrant is the Warrants are outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Personperson in which the Company is not the surviving entity or the shareholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, a majority of the outstanding voting securities of the surviving entity, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Personperson) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Shares, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or propertyproperty (other than as a result of a subdivision or combination of Ordinary Shares covered by Section 4.1 above), or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person person or group of Persons persons whereby such other Person person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person person or other Persons persons making or party to, or associated or affiliated with the other Persons persons making or party to, such stock or share purchase agreement or other business combination) (each each, a “Fundamental Transaction”), then, upon any subsequent exercise of this a Warrant, the Registered Holder of such Warrant shall have the right be entitled to receive, for each Ordinary Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder Transaction (without regard to any limitation in Section 2(e) 3.4 on the exercise of this Warrantthe Warrants), the number of shares of capital stock Ordinary Shares of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable which, in all cases, was received as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this a Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) 3.4 on the exercise of this Warrantthe Warrants). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the each Registered Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise Consideration. Notwithstanding anything to the contrary, (a) if the holders of this Warrant following Ordinary Shares received, as a result of such Fundamental Transaction, a consideration or Alternate Consideration (whether from the Company or from any other person, and whether such consideration or Alternate Consideration is comprised of cash, securities or other property) (such consideration attributed to one Ordinary Share: the "Fundamental Transaction Consideration Per Ordinary Share") with respect to some but not all of their Ordinary Shares (including in the event that they have tendered only some of the Ordinary Shares which such shareholders have initially requested to tender) then, upon any subsequent exercise of a Warrant, the Registered Holder of such Warrant shall be entitled to receive such consideration on a pro-rata basis, based on the number of Ordinary Shares underlying its Warrant; and (b) in the event that the Fundamental Transaction Consideration Per Ordinary Share paid as a result of such Fundamental Transaction is paid by the Successor Entity (as defined below) or by any other person other than the Company, then such Successor Entity or the other person shall assume and be responsible to pay the Fundamental Transaction Consideration Per Ordinary Share upon any subsequent exercise of a Warrant. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this each Warrant in accordance with the provisions of this Section 3(e) 4.5 pursuant to written agreements in form and substance reasonably satisfactory to the Registered Holders and approved by the Registered Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the each Registered Holder, deliver to the such Registered Holder in exchange for this such Registered Holder’s Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this such Registered Holder’s Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this such Warrant (without regard to any the limitations on the exercise of this Warrantset forth in Section 3.4) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price Exercise Price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this such Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Agreement and each Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Agreement and each Warrant with the same effect as if such Successor Entity had been named as the Company herein.
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Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity and in which the shareholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the CompanyCompany consummates a stock purchase agreement or other business combination (including, directly without limitation, a reorganization, recapitalization, spin-off or indirectlyscheme of arrangement) with another Person whereby such other Person acquires more than the 50% of the voting power of the capital stock of the Company (except for any such transaction in which the shareholders of the Company immediately prior to such transaction maintain, in one substantially the same proportions, the voting power of such Person immediately after the transaction), or more related transactions (v) the Company effects any reclassification, reorganization or recapitalization reclassification of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Company, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, then upon any subsequent exercise of this Warrant, such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the CompanyCompany (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) ADSs are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs), (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares ADSs or any compulsory share exchange pursuant to which the Ordinary Shares are ADSs is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares ADSs (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock ADSs of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS ADSs for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of Directors, Holder shall only be entitled to receive from the Company or any Successor Entity, as of the date of consummation of such Fundamental Transaction, the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders of Ordinary Shares or ADSs of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Ordinary Shares and ADSs are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction. “Black Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”) determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the greater of (x) the last VWAP immediately prior to the public announcement of such Fundamental Transaction and (y) the last VWAP immediately prior to the consummation of such Fundamental Transaction and (D) a remaining option time equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds within five Business Days of the Holder’s election (or, if later, on the effective date of the Fundamental Transaction). The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(e3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS ADSs acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction)required no additional consideration upon exercise, and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 1 contract
Samples: Series B American Depositary Shares Purchase Warrant (Therapix Biosciences Ltd.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another PersonPerson in which the Company is not the surviving entity or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, a majority of the outstanding voting securities of the Successor Entity, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which the holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more a majority of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or combination of shares of Common Stock covered in Section 2(a) above or this Section 2(b) below) or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization reorganization, recapitalization, or recapitalization that requires the approval of the shareholders of the Company, spin-off or scheme of arrangementoff) with another Person or group of Persons whereby such other Person or group acquires more than 5060% of the outstanding Ordinary Shares shares of Common Stock (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant)Holder, the number of shares of capital stock Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporationSuccessor Entity, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(eSections 1(g) or 1(c)(ii) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity Notwithstanding anything to the contrary in this Section 2(b), in the event of a Fundamental Transaction in which the Company is not Company’s shareholders receive, as consideration for the survivor (transaction, primarily securities of the “Successor Entity”) to assume , other than a transaction in writing all of the obligations of the Company under which a Successor Entity that is a publicly traded corporation whose stock is quoted or listed for trading on an Eligible Market assumes this Warrant in accordance with such that the provisions Warrant shall be exercisable for the publicly traded Common Stock of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to such Successor Entity, the Holder (without unreasonable delay) prior to such Fundamental Transaction and Successor Entity shall, at the option Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the HolderFundamental Transaction, deliver purchase this Warrant from the Holder by paying to the Holder in exchange for this Warrant a security an amount of cash equal to the Black Scholes Value of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise remaining unexercised portion of this Warrant (without regard to any limitations on the exercise date of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all more than 50% of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Common Stock, (iv) the liquidation, bankruptcy, insolvency, dissolution or winding-up (or the occurrence of any analogous proceeding) affecting the Company, (v) the shares of Common Stock cease to be listed on any Trading Market, (vi) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, or (vvii) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) whereby (A) the holders of Common Stock immediately preceding such transaction either (y) no longer hold a majority of the shares of Common Stock or (z) no longer have the ability to elect a majority of the board of directors of the Company (B) any Person, together with another Person or group of Persons whereby such other Person or group acquires its Affiliates, comes to hold more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) shares of Common Stock (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is the Warrants are outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Personperson, in which the Company is not the surviving entity or the shareholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, a majority of the outstanding voting securities of the surviving entity, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Personperson) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Shares, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or propertyproperty (other than as a result of a subdivision or combination of Ordinary Shares covered by Section 4.1 above), or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person person or group of Persons persons whereby such other Person person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person person or other Persons persons making or party to, or associated or affiliated with the other Persons persons making or party to, such stock or share purchase agreement or other business combination) (each each, a “Fundamental Transaction”), then, upon any subsequent exercise of this a Warrant, the Registered Holder of such Warrant shall have the right be entitled to receive, for each Ordinary Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder Transaction (without regard to any limitation in Section 2(e) 3.4 on the exercise of this Warrantthe Warrants), the number of shares of capital stock Ordinary Shares of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable which, in all cases, was received as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this a Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) 3.4 on the exercise of this Warrantthe Warrants). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the each Registered Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise Consideration. Notwithstanding anything to the contrary, (a) if the holders of this Warrant following Ordinary Shares received, as a result of such Fundamental Transaction, a consideration or Alternate Consideration (whether from the Company or from any other person, and whether such consideration or Alternate Consideration is comprised of cash, securities or other property) (such consideration attributed to one Ordinary Share: the "Fundamental Transaction Consideration Per Ordinary Share") with respect to some but not all of their Ordinary Shares (including in the event that they have tendered only some of the Ordinary Shares which such shareholders have initially requested to tender) then, upon any subsequent exercise of a Warrant, the Registered Holder of such Warrant shall be entitled to receive such consideration on a pro-rata basis, based on the number of Ordinary Shares underlying its Warrant; and (b) in the event that the Fundamental Transaction Consideration Per Ordinary Share paid as a result of such Fundamental Transaction is paid by the Successor Entity (as defined below) or by any other person other than the Company, then such Successor Entity or the other person shall assume and be responsible to pay the Fundamental Transaction Consideration Per Ordinary Share upon any subsequent exercise of a Warrant. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this each Warrant in accordance with the provisions of this Section 3(e) 4.4 pursuant to written agreements in form and substance reasonably satisfactory to the Registered Holders and approved by the Registered Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the each Registered Holder, deliver to the such Registered Holder in exchange for this such Registered Holder’s Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this such Registered Holder’s Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this such Warrant (without regard to any the limitations on the exercise of this Warrantset forth in Section 3.4) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price Exercise Price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this such Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Agreement and each Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Agreement and each Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, In the event that the Company proposes to effect (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any a sale, lease, license, assignment, transfer, conveyance or other disposition disposition, in a single transaction or a series of transactions, of all or substantially all of the assets of the Company and its assets in one Subsidiaries, taken as a whole or (ii) a merger, consolidation or other business combination transaction or series of transactions (other than a Drag-Along Sale) the result of which is that any Person or group of Persons, other than Equinix or any of its Affiliates (or a series group containing any of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSsthem), (iv) becomes the Companyowner, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Company, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the voting power of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by voting stock of the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) Company (each transaction described in clauses (i) and (ii), a “Fundamental Transaction”), theneach Shareholder agrees it will take all actions requested by the Company or Equinix that may be necessary or desirable to consummate such Fundamental Transaction, upon any subsequent exercise of this Warrantincluding, the Holder shall have the right if applicable, to receive, for each Ordinary Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence vote in favor of such Fundamental Transaction, at the option of the Holder (without regard to waive any limitation dissenters’ or appraisal rights in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Companyconnection therewith and, if it such Fundamental Transaction is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable structured as a result transaction the approval of which requires a vote of stockholders, to deliver an executed proxy, which shall be coupled with an interest and shall be irrevocable, authorizing Equinix to vote such Shareholder’s Company Securities in favor of such Fundamental Transaction by a holder Transaction. Each Shareholder shall also, to the extent applicable, (A) make such representations, warranties and covenants, provide such indemnities and enter into such definitive agreements as are customary for transactions of the number nature of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior the Fundamental Transaction; provided that if such Shareholders are required to provide any representations or indemnities in connection with such Fundamental Transaction (other than representations and indemnities concerning each other Shareholder’s title to the Company Securities and authority, power and right to enter into and consummate the Fundamental Transaction without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes contravention of any such exerciselaw or agreement), the determination of the Exercise Price liability for misrepresentation or indemnity shall be appropriately adjusted to apply (as to such Alternate Consideration Shareholders) be expressly stated to be several but not joint and each Shareholder shall not be liable for more than its pro rata share (based on the amount number of Alternate Consideration issuable in respect of one Ordinary Share or ADS, Company Securities (as applicable, in determined on a Common Equivalents basis) Transferred pursuant to such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value ) of any different components liability for misrepresentation or indemnity, (B) benefit from all of the Alternate Consideration. If holders same provisions of Ordinary Shares or ADSs are given any choice the definitive agreements as Equinix and (C) be required to bear its pro rata share (based on the securities, cash or property number of Company Securities (as determined on a Common Equivalents basis) Transferred pursuant to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction) of any escrows, holdbacks or adjustments in purchase price. The Company shall cause provide prompt written notice of any successor entity in a proposed Fundamental Transaction in which to the Company is not Management ALOG Shareholders and ALOG, identifying the survivor material terms and conditions of the Fundamental Transaction (the “Successor EntityFundamental Transaction Notice”) to assume in writing all of ). From and after the obligations of the Company under this Warrant in accordance with the provisions Roll Up, each Management ALOG Shareholder shall be a “Shareholder” for purposes of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein4.04.
Appears in 1 contract
Samples: Shareholders Agreement (Equinix Inc)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity and in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (includingincluding a reorganization, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyrecapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity and in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger merger, amalgamation or consolidation of the Company with or into 4853-3746-0046 v.3 another Person, in which the Company is not the surviving entity and in which the shareholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company, directly or indirectly, Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, share capital tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the share capital of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the CompanyCompany consummates a share purchase agreement or other business combination (including, directly without limitation, a reorganization, recapitalization, spin-off or indirectlyscheme of arrangement) with another Person whereby such other Person acquires more than the 50% of the voting power of the share capital of the Company (except for any such transaction in which the shareholders of the Company immediately prior to such transaction maintain, in one or more related transactions substantially the same proportions, the voting power of such Person immediately after the transaction), (v) the Company effects any reclassification, reorganization or recapitalization reclassification of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or combination of shares of Ordinary Shares covered by Section 9(a) above) or (vvi) the CompanyCompany effects any other event or transaction similar to the foregoing (in any such case, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Company, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that would have been issuable upon such exercise immediately at least ten (10) Trading Days prior to the occurrence consummation of such Fundamental Transaction, at the option of Company shall provide written notice to the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporationHolder, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which if this Warrant is exercisable immediately not fully exercised prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise consummation of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) may be exercised pursuant to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e4(b) pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant hereof immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory without giving effect to any beneficial ownership limitation set forth in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereinSection 11 hereof.
Appears in 1 contract
Samples: Warrant Agreement (Mesoblast LTD)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity and in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance transfer or other disposition to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the Company) (the “Successor Entity”) to shall assume in writing all of the obligations of obligation to deliver to the Company under this Warrant Holder such Alternate Consideration as, in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. In addition, in the case of clause (without unreasonable delay) prior to such Fundamental Transaction and ii), the Successor Entity shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental TransactionAlternate Consideration, and with an exercise price which applies the exercise price hereunder to such shares of capital stock Alternate Consideration (but taking into account the relative value of the Ordinary Shares or ADSs shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein. The provisions of this paragraph (c) shall similarly apply to subsequent transactions analogous of a Fundamental Transaction type. Notwithstanding the foregoing, in the event of a Fundamental Transaction where the consideration payable to holders of Common Stock consists solely of cash, then this Warrant shall automatically be deemed to be exercised in full in a “cashless exercise” pursuant to Section 10 below effective immediately prior to and contingent upon the consummation of such Fundamental Transaction.
Appears in 1 contract
Fundamental Transactions. (i) If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into (whether or not the Company is the surviving corporation) another Person, (ii) the Company, directly or indirectly, Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions; provided, however, that for avoidance of doubt, the granting of a lien on all or substantially all of the Company’s assets as collateral shall not be deemed a Fundamental Transaction hereunder, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or allow another Person) is completed pursuant Person to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sellmake a purchase, tender or exchange their shares for other securities, cash or property and has been offer that is accepted by the holders of more than the 50% or more of either the outstanding Ordinary Shares shares of Common Stock (not including any Ordinary Shares underlying ADSsshares of Common Stock held by the Person or Persons making or party to, or associated or affiliated with the Persons making or party to, such purchase, tender or exchange offer), (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates consummate a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares shares of Common Stock (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination), or (v) the Company effects any reclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by Section 9(a) above) (each in any such case, a “Fundamental Transaction”), thenthen the Holder shall have the right thereafter to receive, upon any subsequent exercise of this Warrant, the Holder shall have the right to receivesame amount and kind of securities, for each Ordinary Share represented by each Warrant ADS that cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares Warrant Shares then issuable upon exercise in full of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration this Warrant (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS ). The aggregate Exercise Price for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to will not be affected by any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and but the Company shall apportion the such aggregate Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause At the Holder’s request, any successor to the Company or surviving entity in such Fundamental Transaction shall issue to the Holder a new warrant consistent with the foregoing provisions and evidencing the Holder’s right to purchase the Alternate Consideration for the aggregate Exercise Price upon exercise thereof. The terms of any agreement pursuant to which a Fundamental Transaction is effected shall include terms requiring any such successor or surviving entity to comply with the provisions of this paragraph (d) and insuring that the Warrant (or any such replacement security) will be similarly adjusted upon any subsequent transaction analogous to a Fundamental Transaction.
(ii) Notwithstanding the foregoing and the provisions of Section 4(b) above, in the event of a Fundamental Transaction in which (i) the Company surviving entity in the Fundamental Transaction is not a publicly traded company and (ii) the survivor (the “Successor Entity”) consideration to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory be delivered to the Holder (without unreasonable delay) prior to holders of Common Stock upon the occurrence of such Fundamental Transaction and shalldoes not consist solely of publicly traded securities, at the option of the Holder, deliver to if the Holder has not exercised the Warrant in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately full prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory then the Holder shall have the right to require any successor to the Company or surviving entity in form and substance such Fundamental Transaction to purchase this Warrant from the Holder by paying to the Holder. Upon , simultaneously with the occurrence consummation of any such Fundamental TransactionTransaction and in lieu of the warrant referred to in Section 9(d)(1), cash in an amount equal to the Successor Entity shall succeed to, and be substituted for (so that from and after value of the remaining unexercised portion of this Warrant on the date of such Fundamental Transactionconsummation, which value shall be determined by use of the provisions Black and Scholes Option Pricing Model reflecting (i) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of this Warrant referring as of such date of request and (ii) an expected volatility equal to the “Company” shall refer instead to lesser of 60% and the Successor Entity), and may exercise every right and power of 100 day volatility obtained from the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereinHVT function on Bloomberg.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, triangular merger, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person (directly or group indirectly) acquires more than 50% of the outstanding Ordinary Shares capital stock of the Company (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares either by voting power or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationeconomic interest) (each except for any such transaction in which the stockholders of the Company immediately prior to such transaction maintain, in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any reclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by Section 9(a) above) (in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder number of Warrant Shares then issuable upon exercise in full of this Warrant (including any Distributions or Purchase Rights then held in abeyance pursuant to Sections 9(b) or 9(c) above) without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (d) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory subsequent transactions analogous to the Holder (without unreasonable delay) prior to such a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock who tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs shares of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental TransactionTransaction that is within the Company’s control, including approval by its Board of Directors, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the Securities Purchase Agreement in accordance with the provisions of this Section 3(e9(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to the consummation of such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Warrant Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Warrant Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the HolderHolder (without unreasonable delay). Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date occurrence or consummation of such Fundamental Transaction, the provisions each and every provision of this Warrant and the Securities Purchase Agreement referring to the “Company” shall refer instead to each of the Company and the Successor EntityEntity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the Securities Purchase Agreement with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock who tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company or (including v) the Company effects any Ordinary Shares underlying ADSsreclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, but not including any Ordinary Shares cash or ADSs held property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (the “Successor Entity”) to assume in writing all including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder, such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 1 contract
Samples: Warrant Amendment Agreement (Idera Pharmaceuticals, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, issued and outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity and in which the shareholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, share capital tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital shares of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital shares of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the shareholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary reclassification of the Common Shares or ADSs held any compulsory share exchange pursuant to which the Common Shares are effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of Common Shares covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 1 contract
Samples: Security Agreement (Milestone Pharmaceuticals Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, triangular merger, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person (directly or group indirectly) acquires more than 50% of the outstanding Ordinary Shares capital stock of the Company (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares either by voting power or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationeconomic interest) (each except for any such transaction in which the stockholders of the Company immediately prior to such transaction maintain, in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any reclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by Section 9(a) above) (in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder number of Warrant Shares or Pre-Funded Warrants then issuable upon exercise in full of this Warrant (including any Distributions or Purchase Rights then held in abeyance pursuant to Sections 9(b) or 9(c) above) without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any Fundamental Transaction in which the Company is not the surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the Company) shall assume the obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this paragraph (d) shall similarly apply to subsequent transactions analogous to a Fundamental Transaction type. If the Company undertakes a Fundamental Transaction in which the Company is not the survivor (surviving entity and the “Successor Entity”) to assume in writing all Alternate Consideration includes securities of the obligations of another Person, then the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) shall provide that, prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and simultaneously with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), any successor to the Company, surviving entity or other Person (including any purchaser of assets of the Company) shall assume the obligation to deliver to the Holder such Alternate Consideration as the Holder is entitled to receive in accordance with the foregoing provisions, and which is reasonably satisfactory in form and substance to assume the Holderother obligations under this Warrant. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the The provisions of this Warrant referring paragraph (d) shall similarly apply to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power subsequent transactions analogous of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereina Fundamental Transaction type.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is the Warrants are outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another PersonPerson in which the Company is not the surviving entity or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the outstanding voting securities of the surviving entity, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which all or substantially all of the holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Common Stock, or (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or (v) the Company, directly combination of shares of Common Stock covered by Section 4.1 or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Company, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination4.2 above) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this a Warrant, the Holder registered holder shall have the right to receive, for each Ordinary Warrant Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder such registered holder (without regard to any limitation in Section 2(e) 3.3.7 on the exercise of this the Warrant), the number of shares of capital stock Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS shares of Common Stock for which this the Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) 3.3.7 on the exercise of this the Warrant). For purposes of any such exercise, the determination of the Exercise Warrant Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Warrant Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder registered holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this its Warrant following such Fundamental Transaction. The Company shall cause any successor entity Notwithstanding the foregoing, in the event of a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all amount of the obligations of Alternate Consideration is less than the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shallPrice, at the option request of the Holder, deliver to registered holder delivered before the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to 90th day after the consummation of such Fundamental Transaction, the Company (or the Successor Entity, as defined below) shall purchase the Warrants from such registered holder by paying to such registered holder, within five Business Days after such request (or, if later, on the effective date of the Fundamental Transaction), and which is reasonably satisfactory cash in form and substance an amount equal to the Holder. Upon Black Scholes Value of the occurrence remaining unexercised portion of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after registered holder’s Warrants on the date of such Fundamental Transaction. As used herein, (1) “Black Scholes Value” means the value of the Warrant based on the Black and Scholes Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”) determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Expiration Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg as of the Trading Day immediately following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (D) a remaining option time equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Expiration Date, (2) “Successor Entity” means the Person (as defined below) (or, if so elected by the registered holder, the provisions Parent Entity (as defined below)) formed by, resulting from or surviving any Fundamental Transaction or the Person (or, if so elected by the registered holder, the Parent Entity) with which such Fundamental Transaction shall have been entered into, (3) “Eligible Market” means the NYSE MKT, The NASDAQ Capital Market, The NASDAQ Global Market, The NASDAQ Global Select Market, the New York Stock Exchange or the OTC Bulletin Board (or any successors to any of this Warrant referring to the “Company” shall refer instead to the Successor Entityforegoing), (4) “Parent Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person and may exercise every right and power whose common stock or equivalent equity security is quoted or listed on an Eligible Market, or, if there is more than one such Person or Parent Entity, the Person or Parent Entity with the largest public market capitalization as of the Company and shall assume all date of consummation of the obligations Fundamental Transaction, and (5) “Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and a government or any department or agency thereof. The terms of any agreement pursuant to which a Fundamental Transaction is effected shall include terms insuring that the Company under this Warrant with the same effect as if Warrants (or any such Successor Entity had been named as the Company hereinreplacement security) will be similarly adjusted upon any subsequent transaction analogous to a Fundamental Transaction.
Appears in 1 contract
Samples: Warrant Agreement (Medgenics, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (A) whereby such other Person or group acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such merger or consolidation), or (B) pursuant to which the Company is not the surviving corporation or (C) pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares shares of Common Stock (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, issued and outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any amalgamation, merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity and in which the shareholders of the Company immediately prior to such amalgamation, merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such amalgamation, merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, share capital tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital shares of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital shares of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the shareholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary reclassification of the Common Shares or ADSs held any compulsory share exchange pursuant to which the Common Shares are effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of Common Shares covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 1 contract
Samples: Security Agreement (Milestone Pharmaceuticals Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another PersonPerson in which the Company is not the surviving entity or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, a majority of the outstanding voting securities of the Successor Entity, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which the holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more a majority of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or combination of shares of Common Stock covered in Section 2(a) above or this Section 2(b) below) or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization reorganization, recapitalization, or recapitalization that requires the approval of the shareholders of the Company, spin-off or scheme of arrangementoff) with another Person or group of Persons whereby such other Person or group acquires more than 5060% of the outstanding Ordinary Shares shares of Common Stock (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e1(f) or Section 1(c)(ii) on the exercise of this Warrant), the number of shares of capital stock Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporationSuccessor Entity, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(eSections 1(f) or 1(c)(ii) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity Notwithstanding anything to the contrary in this Section 2(b), in the event of a Fundamental Transaction in which the Company is not Company’s shareholders receive, as consideration for the survivor (transaction, primarily securities of the “Successor Entity”) to assume , other than a transaction in writing all of the obligations of the Company under which a Successor Entity that is a publicly traded corporation whose stock is quoted or listed for trading on an Eligible Market assumes this Warrant in accordance with such that the provisions Warrant shall be exercisable for the publicly traded Common Stock of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to such Successor Entity, the Holder (without unreasonable delay) prior to such Fundamental Transaction and Successor Entity shall, at the option Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the HolderFundamental Transaction, deliver purchase this Warrant from the Holder by paying to the Holder in exchange for this Warrant a security an amount of cash equal to the Black Scholes Value of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise remaining unexercised portion of this Warrant (without regard to any limitations on the exercise date of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 1 contract
Fundamental Transactions. If, at any time while this the Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the CompanyCompany or any Subsidiary, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Common Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares shares of Common Stock or ADSs held by 50% or more of the other Person or other Persons making or party to, or associated or affiliated with voting power of the other Persons making or party to, such stock or share purchase agreement or other business combination) common equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this the Warrant, the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) this Warrant on the exercise of this Warrant), the number of shares of capital stock Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS shares of Common Stock for which this the Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) of the Warrant on the exercise of this the Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Warrant Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this the Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this the Warrant in accordance with the provisions of this Section 3(e) of the Warrant pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this the Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this the Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS shares of Common Stock acquirable and receivable upon exercise of this the Warrant (without regard to any limitations on the exercise of this the Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this the Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for added to the term “Company” under the Warrant (so that from and after the date occurrence or consummation of such Fundamental Transaction, each and every provision of the provisions of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to each of the Company and the Successor EntityEntity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume all of the obligations of the Company prior thereto under this the Warrant and the other Transaction Documents with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, issued and outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity and in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction); or (v) the Company effects any Ordinary Shares reclassification of the shares of Class A Common Stock or ADSs held any compulsory share exchange pursuant to which the shares of Class A Common Stock are effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Class A Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to, simultaneously with or promptly following the consummation thereof, any successor to assume in writing all the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shalltype. Notwithstanding the foregoing, at in the option event of a Fundamental Transaction where the Holder, deliver consideration payable to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number holders of shares of capital stock Class A Common Stock consists solely of such Successor Entity (cash, solely of Marketable Securities or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable a combination of cash and receivable upon exercise of Marketable Securities, then this Warrant (without regard shall automatically be deemed to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs be exercised in full in a “cashless exercise” pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant Section 10 below effective immediately prior to and contingent upon the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 1 contract
Samples: Underwriting Agreement (Cibus, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock who tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (the “Successor Entity”i) to assume in writing all of the obligations of the Company under provides for the simultaneous “cashless exercise” of this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to Section 10 below for the Holder Alternate Consideration or (without unreasonable delayii) prior to such Fundamental Transaction and shallor simultaneously with the consummation thereof, at any successor to the option Company, surviving entity or other Person (including any purchaser of assets of the Holder, Company) shall assume the obligation to deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.such
Appears in 1 contract
Samples: Pre Funded Warrant Agreement (Alimera Sciences Inc)
Fundamental Transactions. If, at any time while this Warrant is outstanding, issued and outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any amalgamation, merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity and in which the stockholders of the Company immediately prior to such amalgamation, merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such amalgamation, merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, share capital tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except (x) for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction or (y) any Ordinary Shares transaction or ADSs held series of related transactions principally for bona fide equity financing purposes in which cash is received by the Company or any successor or indebtedness of the Company is cancelled or converted or a combination thereof occurs) or (v) the Company effects any reclassification of the Common Stock or any compulsory stock exchange pursuant to which the Common Stock are effectively converted into or exchanged for other Person securities, cash or property (other Persons making than as a result of a subdivision or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationcombination of Common Stock covered by Section 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (A) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (B) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company or (including v) the Company effects any Ordinary Shares underlying ADSsreclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, but not including any Ordinary Shares cash or ADSs held property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (the “Successor Entity”) to assume in writing all including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder, such Alternate Consideration as, in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to foregoing provisions, the Holder (without unreasonable delay) prior may be entitled to such Fundamental Transaction receive, and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of other obligations under this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 1 contract
Samples: Warrant Agreement (Parkervision Inc)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder number of Warrant Shares then issuable upon exercise in full of this Warrant (including any Distributions or Purchase Rights then held in abeyance pursuant to Sections 9(b) or 9(c) above. without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (d) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is the Warrants are outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Personperson, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Personperson) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Shares, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person person or group of Persons persons whereby such other Person person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person person or other Persons persons making or party to, or associated or affiliated with the other Persons persons making or party to, such stock or share purchase agreement or other business combination) (each each, a “Fundamental Transaction”), then, upon any subsequent exercise of this a Warrant, the Registered Holder of such Warrant shall have the right be entitled to receive, for each Ordinary Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder Transaction (without regard to any limitation in Section 2(e) 3.4 on the exercise of this Warrantthe Warrants), the number of shares of capital stock Ordinary Shares of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable which, in all cases, was received as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this a Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) 3.4 on the exercise of this Warrantthe Warrants). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the each Registered Holder shall be given the same choice as choice. Notwithstanding anything to the Alternate Consideration it receives upon any exercise contrary, (a) if the holders of this Warrant following Ordinary Shares received, as a result of such Fundamental Transaction, a consideration or Alternate Consideration (whether from the Company or from any other person, and whether such consideration or Alternate Consideration is comprised of cash, securities or other property) (such consideration attributed to one Ordinary Share: the "Fundamental Transaction Consideration Per Ordinary Share") with respect to some but not all of their Ordinary Shares (including in the event that they have tendered only some of the Ordinary Shares which such shareholders have initially requested to tender) then, upon any subsequent exercise of a Warrant, the Registered Holder of such Warrant shall be entitled to receive such consideration on a pro-rata basis, based on the number of Ordinary Shares underlying its Warrant; and (b) in the event that the Fundamental Transaction Consideration Per Ordinary Share paid as a result of such Fundamental Transaction is paid by the Successor Entity (as defined below) or by any other person other than the Company, then such Successor Entity or the other person shall assume and be responsible to pay the Fundamental Transaction Consideration Per Ordinary Share upon any subsequent exercise of a Warrant. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this each Warrant in accordance with the provisions of this Section 3(e) 4.4 pursuant to written agreements in form and substance reasonably satisfactory to the Registered Holders and approved by the Registered Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the each Registered Holder, deliver to the such Registered Holder in exchange for this such Registered Holder’s Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this such Registered Holder’s Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this such Warrant (without regard to any the limitations on the exercise of this Warrantset forth in Section 3.4) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price Exercise Price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this such Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Agreement and each Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Agreement and each Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 1 contract
Samples: Warrant Agreement (Check-Cap LTD)
Fundamental Transactions. If, at any time while this Warrant is outstanding, issued and outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or in which the shareholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, share capital tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital shares of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the CompanyCompany consummates a share purchase agreement or other business combination (including, directly without limitation, a reorganization, recapitalization, spin-off or indirectlyscheme of arrangement) with another Person whereby such other Person acquires more than the 50% of the voting power of the capital shares of the Company (except for any such transaction in which the shareholders of the Company immediately prior to such transaction maintain, in one substantially the same proportions, the voting power of such Person immediately after the transaction) or more related transactions (v) the Company effects any reclassification, reorganization or recapitalization reclassification of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are is effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Company, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 1 contract
Samples: Share Surrender and Warrant Agreement (Zura Bio LTD)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its the assets of the Company in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of greater than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Common Stock or greater than 50% of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more greater than 50% of the outstanding Ordinary Shares shares of Common Stock or greater than 50% of the voting power of the common equity of the Company, except, in each case of (including i) through (v), actions taken solely in connection with any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) internal reorganization (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e11(a) on the exercise of this Warrant), the number of shares of capital stock Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e11(a) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of Directors, the Holder shall only be entitled to receive from the Company or any Successor Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided, further, that if holders of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders of Common Stock will be deemed to have received common stock of the Successor Entity (which Successor Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Expiration Date, (B) an expected volatility equal to the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction, (D) a remaining option time equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Expiration Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds (or such other consideration) within the later of (i) five Business Days of the Holder’s election and (ii) the date of consummation of the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(e3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for added to the term “Company” under this Warrant (so that from and after the date occurrence or consummation of such Fundamental Transaction, the provisions each and every provision of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to each of the Company and the Successor EntityEntity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein.
Appears in 1 contract
Samples: Security Agreement (NEUROONE MEDICAL TECHNOLOGIES Corp)
Fundamental Transactions. If, at any time while this Warrant is the Warrants are outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Personperson, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Personperson) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Shares, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person person or group of Persons persons whereby such other Person person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person person or other Persons persons making or party to, or associated or affiliated with the other Persons persons making or party to, such stock or share purchase agreement or other business combination) (each each, a “Fundamental Transaction”), then, upon any subsequent exercise of this a Warrant, the Registered Holder of such Warrant shall have the right be entitled to receive, for each Ordinary Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder Transaction (without regard to any limitation in Section 2(e) 3.4 on the exercise of this Warrantthe Warrants), the number of shares of capital stock Ordinary Shares of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable which, in all cases, was received as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this a Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) 3.4 on the exercise of this Warrantthe Warrants). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the each Registered Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise Consideration. Notwithstanding anything to the contrary, (a) if the holders of this Warrant following Ordinary Shares received, as a result of such Fundamental Transaction, a consideration or Alternate Consideration (whether from the Company or from any other person, and whether such consideration or Alternate Consideration is comprised of cash, securities or other property) (such consideration attributed to one Ordinary Share: the "Fundamental Transaction Consideration Per Ordinary Share") with respect to some but not all of their Ordinary Shares (including in the event that they have tendered only some of the Ordinary Shares which such shareholders have initially requested to tender) then, upon any subsequent exercise of a Warrant, the Registered Holder of such Warrant shall be entitled to receive such consideration on a pro-rata basis, based on the number of Ordinary Shares underlying its Warrant; and (b) in the event that the Fundamental Transaction Consideration Per Ordinary Share paid as a result of such Fundamental Transaction is paid by the Successor Entity (as defined below) or by any other person other than the Company, then such Successor Entity or the other person shall assume and be responsible to pay the Fundamental Transaction Consideration Per Ordinary Share upon any subsequent exercise of a Warrant. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this each Warrant in accordance with the provisions of this Section 3(e) 4.4 pursuant to written agreements in form and substance reasonably satisfactory to the Registered Holders and approved by the Registered Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the each Registered Holder, deliver to the such Registered Holder in exchange for this such Registered Holder’s Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this such Registered Holder’s Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this such Warrant (without regard to any the limitations on the exercise of this Warrantset forth in Section 3.4) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price Exercise Price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this such Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Agreement and each Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Agreement and each Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 1 contract
Samples: Warrant Agreement (Check-Cap LTD)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock who tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company or (including v) the Company effects any Ordinary Shares underlying ADSsreclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, but not including any Ordinary Shares cash or ADSs held property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”). Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) receivable shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company's control, including not approved by the Company's Board of Directors, Holder shall only be entitled to receive from the Company or any Successor Entity, as of the date of consummation of such Fundamental Transaction, the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction. “Black Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”) determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a result risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Expiration Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the greater of (x) the last Closing Sale Price immediately prior to the public announcement of such Fundamental Transaction by a holder of and (y) the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable last Closing Sale Price immediately prior to the consummation of such Fundamental Transaction and (without regard D) a remaining option time equal to any limitation in Section 2(ethe time between the date of the public announcement of the applicable Fundamental Transaction and the Expiration Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds (or such other consideration) within five Business Days of the Holder’s election (or, if later, on the exercise of this Warrant). For purposes of any such exercise, the determination effective date of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction). The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e9(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 1 contract
Samples: Warrant to Purchase Common Stock (McEwen Mining Inc.)
Fundamental Transactions. (1) If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into (whether or not the Company is the surviving corporation) another Person, (ii) the Company, directly or indirectly, Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions; provided, however, that for avoidance of doubt, the granting of a lien on all or substantially all of the Company's assets as collateral shall not be deemed a Fundamental Transaction (as such term is hereinafter defined) hereunder, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or allows another Person) is completed pursuant Person to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sellmake a purchase, tender or exchange their shares for other securities, cash or property offer that is not contested by the Company and has been is accepted by the holders of more than the 50% or more of either the outstanding Ordinary Shares shares of Common Stock (not including any Ordinary Shares underlying ADSsshares of Common Stock held by the Person or Persons making or party to, or associated or affiliated with the Persons making or party to, such purchase, tender or exchange offer), (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares shares of Common Stock (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination), or (v) the Company effects any reclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by Section 9(a) above) (each in any such case, a “Fundamental Transaction”), thenthen the Holder shall have the right thereafter to receive, upon any subsequent exercise of this Warrant, the Holder shall have the right to receivesame amount and kind of securities, for each Ordinary Share represented by each Warrant ADS that cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares Warrant Shares then issuable upon exercise in full of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration this Warrant (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS ). The aggregate Exercise Price for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to will not be affected by any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and but the Company shall apportion the such aggregate Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause At the Holder’s request, any successor to the Company or surviving entity in such Fundamental Transaction shall issue to the Holder a new warrant consistent with the foregoing provisions and evidencing the Holder’s right to purchase the Alternate Consideration for the aggregate Exercise Price upon exercise thereof. The terms of any agreement pursuant to which a Fundamental Transaction is effected shall include terms requiring any such successor or surviving entity to comply with the provisions of this paragraph (d) and insuring that the Warrant (or any such replacement security) will be similarly adjusted upon any subsequent transaction analogous to a Fundamental Transaction.
(2) Notwithstanding the foregoing and the provisions of Section 9(b) above, in the event of a Fundamental Transaction in which (i) the Company surviving entity in the Fundamental Transaction is not a publicly traded company and (ii) the survivor (the “Successor Entity”) consideration to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory be delivered to the Holder (without unreasonable delay) prior to holders of Common Stock upon the occurrence of such Fundamental Transaction and shall, does not consist of publicly traded securities representing at the option least eighty percent (80%) of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stockconsideration, such number of shares of capital stock and such exercise price being for if the purpose of protecting Holder has not exercised the economic value of this Warrant immediately in full prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory then the Holder shall have the right to require any successor to the Company or surviving entity in form and substance such Fundamental Transaction to purchase this Warrant from the Holder by paying to the Holder. Upon , simultaneously with the occurrence consummation of any such Fundamental TransactionTransaction and in lieu of the warrant referred to in Section 9(d)(1), cash in an amount equal to the Successor Entity shall succeed to, and be substituted for (so that from and after value of the remaining unexercised portion of this Warrant on the date of such Fundamental Transactionconsummation, which value shall be determined by use of the provisions Black and Scholes Option Pricing Model reflecting (i) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of this Warrant referring as of such date of request and (ii) an expected volatility equal to the “Company” shall refer instead to lesser of 60% and the Successor Entity), and may exercise every right and power of 100 day volatility obtained from the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereinHVT function on Bloomberg.
Appears in 1 contract
Samples: Securities Purchase Agreement (Dyadic International Inc)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another PersonPerson in which the Company is not the surviving entity or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, a majority of the outstanding voting securities of the Successor Entity, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which the holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more a majority of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or combination of shares of Common Stock covered in Section 2(a) above or this Section 2(b) below) or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization reorganization, recapitalization, or recapitalization that requires the approval of the shareholders of the Company, spin-off or scheme of arrangementoff) with another Person or group of Persons whereby such other Person or group acquires more than 5060% of the outstanding Ordinary Shares shares of Common Stock (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant)Holder, the number of shares of capital stock Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporationSuccessor Entity, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(eSections 1(g) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity Notwithstanding anything to the contrary in this Section 2(b), in the event of a Fundamental Transaction in which the Company is not Company’s shareholders receive, as consideration for the survivor (transaction, primarily securities of the “Successor Entity”) to assume , other than a transaction in writing all of the obligations of the Company under which a Successor Entity that is a publicly traded corporation whose stock is quoted or listed for trading on an Eligible Market assumes this Warrant in accordance with such that the provisions Warrant shall be exercisable for the publicly traded Common Stock of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to such Successor Entity, the Holder (without unreasonable delay) prior to such Fundamental Transaction and Successor Entity shall, at the option Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the HolderFundamental Transaction, deliver purchase this Warrant from the Holder by paying to the Holder in exchange for this Warrant a security an amount of cash equal to the Black Scholes Value of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise remaining unexercised portion of this Warrant (without regard to any limitations on the exercise date of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity and in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance transfer or other disposition to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (d) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (d) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 1 contract
Samples: Warrant Agreement (CervoMed Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the CompanyCompany directly, directly or indirectly, through subsidiaries, Affiliates or otherwise, in one or more related transactions effects any merger transactions, (1) consolidates or consolidation of the Company merges with or into (whether or not the Company is the surviving corporation) another PersonSubject Entity, or (ii2) the Companysells, directly assigns, transfers, conveys or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition otherwise disposes of all or substantially all of its the properties or assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Personany of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X) is completed pursuant to which holders one or more Subject Entities, or (3) makes, or allows one or more Subject Entities to make, or allows the Company to be subject to or have its shares of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted Common Stock be subject to sellor party to one or more Subject Entities making, a purchase, tender or exchange their shares for other securities, cash or property and has been offer that is accepted by the holders of at least either (x) 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)shares of Common Stock, (ivy) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization 50% of the Ordinary Shares outstanding shares of Common Stock calculated as if any shares of Common Stock held by all Subject Entities making or party to, or Affiliated with any compulsory share Subject Entities making or party to, such purchase, tender or exchange pursuant to which offer were not outstanding; or (z) such number of shares of Common Stock such that all Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such purchase, tender or exchange offer, become collectively the Ordinary Shares are effectively converted into or exchanged for other securities, cash or propertybeneficial owners (as defined in Rule 13d-3 under the Exchange Act) of at least 50% of the outstanding shares of Common Stock, or (v4) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person one or group of Persons more Subject Entities whereby all such other Person Subject Entities, individually or group acquires more than in the aggregate, acquire, either (x) at least 50% of the outstanding Ordinary Shares shares of Common Stock, (including y) at least 50% of the outstanding shares of Common Stock calculated as if any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs shares of Common Stock held by all the other Person or other Persons Subject Entities making or party to, or associated or affiliated Affiliated with the other Persons any Subject Entity making or party to, such stock or share purchase agreement or other business combination were not outstanding; or (z) such number of shares of Common Stock such that the Subject Entities become collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of at least 50% of the outstanding shares of Common Stock, or (5) reorganizes, recapitalizes or reclassifies its shares of Common Stock (other than as a result of a subdivision or combination of shares of Common Stock covered by Section 9(a) above), (ii) the Company directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related transactions, allows any Subject Entity individually or the Subject Entities in the aggregate to be or become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, whether through acquisition, purchase, assignment, conveyance, tender, tender offer, exchange, reduction in outstanding shares of Common Stock, merger, consolidation, business combination, reorganization, recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever, of either (x) at least 50% of the aggregate ordinary voting power represented by issued and outstanding shares of Common Stock, (each y) at least 50% of the aggregate ordinary voting power represented by issued and outstanding shares of Common Stock not held by all such Subject Entities as of the date of this Warrant calculated as if any shares of Common Stock held by all such Subject Entities were not outstanding, or (z) a percentage of the aggregate ordinary voting power represented by issued and outstanding shares of Common Stock or other equity securities of the Company sufficient to allow such Subject Entities to effect a statutory short form merger or other transaction requiring other stockholders of the Company to surrender their Common Stock without approval of the stockholders of the Company or (iii) directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related transactions, there is an issuance by the Company or the Company enters into any other instrument or transaction structured in a manner to circumvent, or that circumvents, the intent of this definition in which case this definition shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this definition to the extent necessary to correct this definition or any portion of this definition which may be defective or inconsistent with the intended treatment of such instrument or transaction (in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (x) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below, or (y) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(e9(c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
Appears in 1 contract
Samples: Securities Purchase Agreement (Leap Therapeutics, Inc.)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectlyCompany effects (A) any merger of the Company with (but not into) another entity, in one which the stockholders of the Company immediately prior to such transaction own less than a majority of the outstanding stock of the surviving entity, or more related transactions effects (B) any merger or consolidation of the Company with or into another Personentity, (ii) the Company, directly or indirectly, Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, any tender offer or exchange offer (whether approved or authorized by the Company or another Person) Company’s Board of Directors is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, at least a majority of the outstanding Common Stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)property, (iv) the Company, directly or indirectly, in one or more related transactions Company effects any reclassification, reorganization or recapitalization reclassification of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or propertyproperty (other than as a result of a subdivision or combination of shares of Common Stock covered by Section 9(a) hereof), or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons (as defined below) whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares shares of Common Stock (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination), or (vi) any “person” or “group” (each as these terms are used for purposes of Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock. (each, a “Fundamental Transaction”), thenthen the Holder shall have the right thereafter to receive, upon any subsequent exercise of this Warrant, the Holder shall have the right to receivesame amount and kind of securities, for each Ordinary Share represented by each Warrant ADS that cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of ), and the number of Ordinary Holder shall no longer have the right to receive Warrant Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the upon exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity in a Fundamental Transaction in which or the Company is not corporation purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall assume the survivor (obligation to deliver to the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant Holder, such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions of a Fundamental Transaction and shalltype. Notwithstanding the foregoing, in the event of a Fundamental Transaction other than one in which a Successor Entity that is a publicly traded corporation whose stock is quoted or listed for trading on an Eligible Market assumes this Warrant such that the Warrant shall be exercisable for the publicly traded Common Stock of such Successor Entity, at the option request of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.delivered before the
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the CompanyCompany (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) ADSs are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs), (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares ADSs or any compulsory share exchange pursuant to which the Ordinary Shares are ADSs is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares ADSs (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock ADSs of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS ADSs for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company's control, including not approved by the Company's Board of Directors, Holder shall only be entitled to receive from the Company or any Successor Entity, as of the date of consummation of such Fundamental Transaction, the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders of Ordinary Shares or ADSs of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Ordinary Shares and ADSs are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction. “Black Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”) determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the greater of (x) the last VWAP immediately prior to the public announcement of such Fundamental Transaction and (y) the last VWAP immediately prior to the consummation of such Fundamental Transaction and (D) a remaining option time equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds within five Business Days of the Holder’s election (or, if later, on the effective date of the Fundamental Transaction). The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(e3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS ADSs acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction)required no additional consideration upon exercise, and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Personentity, in which the shareholders of the Company as of immediately prior to the transaction own less than a majority of the outstanding stock of the surviving entity, (ii) the Company, directly or indirectly, Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, any tender offer or exchange offer (whether by the Company or another Personperson or entity) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% property, or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs), (iv) the Company, directly or indirectly, in one or more related transactions Company effects any reclassification, reorganization or recapitalization reclassification of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or property, property (other than as a result of a subdivision or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders shares of the Company, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs held Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 8 above) (each each, a “Fundamental Transaction”), thenthen the Holder shall have the right thereafter to receive, upon any subsequent exercise of this Warrant, the same amount and kind of securities, cash or property, as applicable, as the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if the Holder had been, immediately prior to such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Exercise Shares represented then issuable upon exercise in full of such Warrant. Following any transaction contemplated by each Warrant ADS this Section 10, the term Exercise Shares shall be deemed to refer to the shares for which this Warrant is thereafter exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on accordance with the exercise of this Warrant)provisions hereof. For purposes of any such exerciseIn addition, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If if holders of Ordinary Shares or ADSs Common Stock are given any a choice as to the securities, cash cash, or property to be received in a Fundamental TransactionTransaction (including a right to elect to receive any particular one or combination of more than one of the foregoing), then the Holder shall be given the same choice as to the Alternate Consideration it receives of consideration upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in , which the Company is not the survivor (the “Successor Entity”) to assume in writing all choice of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, consideration can be made at the option time of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to at any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately time prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power expiration of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereinExercise Period.
Appears in 1 contract
Samples: Warrant Agreement (Polymedix Inc)
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, in which the shareholders of the Company as of immediately prior to the transaction own less than a majority of the outstanding stock of the surviving entity, (ii) the Company, directly or indirectly, Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which all or substantially all of the holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by would result in the holders shareholders of 50% the Company immediately prior to such tender offer or more exchange offer owning less than a majority of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)stock after such tender offer or exchange offer, (iv) the Company, directly or indirectly, in one or more related transactions Company effects any reclassification, reorganization or recapitalization reclassification of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares are Common Stock is effectively converted into or exchanged for other securities, cash or propertyproperty (other than as a result of a subdivision or combination of shares of Common Stock covered by Section 8(a) above), or (v) any transaction where the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares Common Stock or (including vi) any Ordinary Shares underlying ADSstransaction where any "person" or "group" (as these terms are used for purposes of Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but not including as amended) is or shall become the "beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended), directly or indirectly, of 50% aggregate ordinary voting power represented by issued and outstanding Common Stock (in any Ordinary Shares or ADSs held by the other Person or other Persons making or party tosuch case, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), thenthen the Holder shall have the right thereafter to receive, upon any subsequent exercise of this Warrant, the Holder shall have the right to receivesame amount and kind of securities, for each Ordinary Share represented by each Warrant ADS that cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as ). Notwithstanding the foregoing, in the event of a result of such Fundamental Transaction by a holder Transaction, at the request of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on Holder delivered before the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in 90th day after such Fundamental Transaction, and the Company (or the surviving entity) shall apportion purchase this Warrant from the Exercise Price among Holder by paying to the Alternate Consideration in a reasonable manner reflecting Holder, within five Business Days after such request (or, if later, on the relative value of any different components effective date of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as Fundamental Transaction), cash in an amount equal to the securities, cash or property to be received in a Fundamental Transaction, then Black Scholes Value of the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise remaining unexercised portion of this Warrant following on the date of such Fundamental Transaction. The Company shall cause not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity in a Fundamental Transaction in which or the Company is not corporation purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall assume the survivor (obligation to deliver to the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant Holder, such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to purchase and/or receive (as the case may be), and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (b) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory subsequent transactions analogous to the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction. As used herein, and with an exercise price which applies “Black Scholes Value” means the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior based on the Black and Scholes Option Pricing Model obtained from the “OV” function on Bloomberg Financial Markets determined as of the day of the closing of the applicable Fundamental Transaction for pricing purposes and reflecting (i) a risk-free interest rate corresponding to the consummation U.S. Treasury rate for a period equal to the remaining term of this Warrant as of such Fundamental Transaction)date of request, and which is reasonably satisfactory in form and substance (ii) an expected volatility equal to the Holder. Upon greater of 100% and the occurrence 100 day volatility obtained from the HVT function on Bloomberg Financial Markets as of any such the day immediately following the public announcement of the applicable Fundamental Transaction, (iii) the Successor Entity underlying price per share used in such calculation shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power sum of the Company price per share being offered in cash, if any, plus the value of any non cash consideration, if any, being offered in the Fundamental Transaction and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein(iv) a 365 day annualization factor.
Appears in 1 contract
Fundamental Transactions. If, at any time while this Warrant is outstanding, outstanding (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity or the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock who tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company or (including v) the Company effects any Ordinary Shares underlying ADSsreclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, but not including any Ordinary Shares cash or ADSs held property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless prior to or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (the “Successor Entity”) to assume in writing all including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder, such Alternate Consideration as, in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to foregoing provisions, the Holder (without unreasonable delay) prior may be entitled to such Fundamental Transaction receive, and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of other obligations under this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
Appears in 1 contract
Samples: Warrant Agreement (Parkervision Inc)
Fundamental Transactions. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the CompanyCompany or any Subsidiary, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)shares of Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares Common Stock or any compulsory share exchange pursuant to which the Ordinary Shares shares of Common Stock are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares shares of Common Stock (including any Ordinary Shares underlying ADSs, but not including any Ordinary Shares or ADSs shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Ordinary Warrant Share represented by each Warrant ADS that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant)Holder, the number of shares of capital common stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant)Transaction. For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within thirty (30) days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of Directors, Holder shall only be entitled to receive from the Company or any Successor Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided, further, that if holders of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders of Common Stock will be deemed to have received common stock of the Successor Entity (which Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value” means the value of this Warrant based on the Black Scholes Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”) determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non- cash consideration, if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period beginning on the Trading Day immediately preceding the announcement of the applicable Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section 4(b) and (D) a remaining option time equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds within five Business Days of the Holder’s election (or, if later, on the effective date of the Fundamental Transaction). The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other transaction documents in accordance with the provisions of this Section 3(e4(b) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other transaction documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other transaction documents with the same effect as if such Successor Entity had been named as the Company herein.
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Samples: Security Agreement (60 Degrees Pharmaceuticals, Inc.)
Fundamental Transactions. If, If at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions Company effects any merger or consolidation of the Company with or into another Person, (ii) in which the CompanyCompany is not the surviving entity and in which the stockholders of the Company immediately prior to such merger or consolidation do not own, directly or indirectly, at least 50% of the voting power of the surviving entity immediately after such merger or consolidation, (ii) the Company effects any sale, lease, license, assignment, transfer, conveyance or other disposition sale to another Person of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any, direct or indirect, purchase offer, pursuant to any tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which ), holders of Ordinary Shares (including any Ordinary Shares underlying ADSs) are permitted to sell, capital stock tender or exchange their shares for other securities, cash or property and has been accepted by the holders of representing more than 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying ADSs)voting power of the capital stock of the Company and the Company or such other Person, as applicable, accepts such tender for payment, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions Company consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization or recapitalization that requires the approval of the shareholders of the Companyreorganization, recapitalization, spin-off or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than the 50% of the outstanding Ordinary Shares voting power of the capital stock of the Company (including except for any Ordinary Shares underlying ADSssuch transaction in which the stockholders of the Company immediately prior to such transaction maintain, but not including in substantially the same proportions, the voting power of such Person immediately after the transaction) or (v) the Company effects any Ordinary Shares reclassification of the Common Stock or ADSs held any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock covered by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combinationSection 9(a) above) (each in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, then following such Fundamental Transaction the Holder shall have the right to receive, for each Ordinary Share represented by each Warrant ADS that upon exercise of this Warrant, the same amount and kind of securities, cash or property as it would have been issuable entitled to receive upon such exercise immediately prior to the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, at the option holder of the Holder (number of Warrant Shares then issuable upon exercise in full of this Warrant without regard to any limitation in Section 2(e) limitations on the exercise of this Warrant), the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration contained herein (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares represented by each Warrant ADS for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share or ADS, as applicable, in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause not effect any successor entity in a Fundamental Transaction in which the Company is not the survivor surviving entity or the Alternate Consideration includes securities of another Person unless (i) the Alternate Consideration is solely cash and the Company provides for the simultaneous “Successor Entity”cashless exercise” of this Warrant pursuant to Section 10 below or (ii) prior to assume in writing all or simultaneously with the consummation thereof, any successor to the Company, surviving entity or other Person (including any purchaser of assets of the obligations of Company) shall assume the Company under this Warrant obligation to deliver to the Holder such Alternate Consideration as, in accordance with the foregoing provisions, the Holder may be entitled to receive, and the other obligations under this Warrant. The provisions of this Section 3(eparagraph (c) pursuant shall similarly apply to written agreements in form and substance reasonably satisfactory to the Holder (without unreasonable delay) prior to such subsequent transactions analogous of a Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares represented by each Warrant ADS acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares or ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company hereintype.
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