Percentage Limitation. Any Holder may notify the Company in writing immediately prior to becoming a Holder in the event such Holder elects not to be subject to the provisions contained in Section 2(d) of the form of Warrant Certificate. Unless the election is made by a Holder, the Warrant Agent shall not effect the exercise of any portion of the Holder’s Warrant, and the Holder shall not have the right to exercise any portion of its Warrant, pursuant to the terms and conditions of such Warrant and any such exercise shall be null and void and treated as if never made, to the extent that after giving effect to such exercise, the Holder and its affiliates and any other Persons whose beneficial ownership (calculated in accordance with Section 13(d) of the 0000 Xxx) of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Act (collectively, the “Attribution Parties”), to the Warrant Agent’s knowledge, would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of its Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (A) exercise of the remaining, unexercised portion of the Warrant beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants, including other Warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this paragraph. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding shares of Common Stock the Holder may acquire upon the exercise of such Warrant without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company or its transfer agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Notice of Exercise from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Notice of Exercise would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this paragraph, to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be acquired pursuant to such Notice of Exercise (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. The Warrant Agent shall have no duty or obligation under the preceding sentence and otherwise under this paragraph to determine or confirm whether the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number at any time unless and until instructed in writing by the Company. It is acknowledged by the Holder that neither the Company nor the Warrant Agent is representing to such Holder that such calculation is in compliance with Section 13(d) of the 1934 Act and such Holder is solely responsible for any schedules required to be filed in accordance therewith. For any reason at any time, upon the written or oral request of the Holder, the Company shall within two (2) trading days confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding, to the extent that the Company does not believe, in its sole discretion, that such information constitutes material non-public information of the Company. To the extent that the limitation contained in this paragraph applies, the determination of whether such Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Parties) and of which portion of such Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether such Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Parties) and of which portion of such Warrant is exercisable, in each case subject to such aggregate percentage limitation, and neither the Company nor the Warrant Agent shall have any obligation to verify or confirm the accuracy of such determination. In addition, a determination under this paragraph as to any group status shall be determined in accordance with Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder. Upon delivery of a written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of such Warrant. No prior inability to exercise a Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this paragraph to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this paragraph or to make changes or supplements necessary or desirable to properly give effect to such limitation.
Appears in 2 contracts
Samples: Warrant Agreement (Argos Therapeutics Inc), Underwriting Agreement (Immunomedics Inc)
Percentage Limitation. Any The Holder may notify the Company in writing immediately prior to becoming a Holder in the event such Holder elects not to be subject to the provisions contained in this Section 2(d) of the form of Warrant Certificate). Unless the election is made by a Holder, the Warrant Agent shall not effect the exercise of any portion of the Holder’s this Warrant, and the Holder shall not have the right to exercise any portion of its this Warrant, pursuant to the terms and conditions of such this Warrant and any such exercise shall be null and void and treated as if never made, to the extent that after giving effect to such exercise, the Holder and its affiliates and any other Persons whose beneficial ownership (calculated in accordance with Section 13(d) of the 0000 Xxx) of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Act (collectively, the “Attribution Parties”), to the Warrant Agent’s knowledge, would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of its this Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (A) exercise of the remaining, unexercised portion of the this Warrant beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants, including other Warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this paragraphSection 2(d). Except as set forth in the preceding sentence, for purposes of this paragraphSection 2(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding shares of Common Stock the Holder may acquire upon the exercise of such this Warrant without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company or its transfer agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Notice of Exercise from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Notice of Exercise would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this paragraphSection 2(d), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be acquired pursuant to such Notice of Exercise (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, practicable the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. The Warrant Agent shall have no duty or obligation under the preceding sentence and otherwise under this paragraph Section 2(d) to determine or confirm whether the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number at any time unless and until instructed in writing by the Company. It is acknowledged by the Holder that neither the Company nor the Warrant Agent is representing to such Holder that such calculation is in compliance with Section 13(d) of the 1934 Act and such Holder is solely responsible for any schedules required to be filed in accordance therewith. For any reason at any time, upon the written or oral request of the Holder, the Company shall within two (2) trading days confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding, to the extent that the Company does not believe, in its sole discretion, that such information constitutes material non-public information of the Company. To the extent that the limitation contained in this paragraph Section 2(d) applies, the determination of whether such this Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Parties) and of which portion of such this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether such this Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Parties) and of which portion of such this Warrant is exercisable, in each case subject to such aggregate percentage limitation, and neither the Company nor the Warrant Agent shall have any obligation to verify or confirm the accuracy of such determination. In addition, a determination under this paragraph Section 2(d) as to any group status shall be determined in accordance with Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder. Upon delivery of a written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of such this Warrant. No prior inability to exercise a this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this paragraph Section 2(d) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this paragraph Section 2(d) or to make changes or supplements necessary or desirable to properly give effect to such limitation.
Appears in 2 contracts
Samples: Warrant Agreement (Immunomedics Inc), Warrant Agreement (Argos Therapeutics Inc)
Percentage Limitation. Any Holder may notify the Company in writing immediately prior to becoming a Holder in the event such Holder elects not to be subject Notwithstanding anything to the provisions contrary contained in Section 2(d) of herein, the form number of Warrant Certificate. Unless Shares that may be acquired by the election is made by a Holder, the Warrant Agent shall not effect the Holder upon any exercise of any portion of the Holder’s Warrant, and the Holder shall not have the right to exercise any portion of its Warrant, pursuant to the terms and conditions of such this Warrant and any such exercise (or otherwise in respect hereof) shall be null and void and treated as if never made, limited to the extent that after giving effect necessary to ensure that, following such exerciseexercise (or other issuance), the total number of shares of Common Stock then beneficially owned by the Holder and its affiliates and any other Persons whose beneficial ownership (calculated in accordance with Section 13(d) of the 0000 Xxx) of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Securities Exchange Act of 1934, as amended (collectively, the “Attribution Parties1934 Act”), to the Warrant Agent’s knowledge, would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the 1934 Act and the rules and regulations promulgated thereunder, including any “group” of which the Holder is a member, does not exceed [4.9999%/9.999%] of the total number of then issued and outstanding shares of Common Stock outstanding immediately after giving effect to (including for such exercise. For purposes of purpose the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of its Warrant with respect to which the determination of such sentence is exercise), it being made, but shall exclude shares of Common Stock which would be issuable upon (A) exercise of the remaining, unexercised portion of the Warrant beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants, including other Warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this paragraph. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding shares of Common Stock the Holder may acquire upon the exercise of such Warrant without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company or its transfer agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Notice of Exercise from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Notice of Exercise would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this paragraph, to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be acquired pursuant to such Notice of Exercise (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. The Warrant Agent shall have no duty or obligation under the preceding sentence and otherwise under this paragraph to determine or confirm whether the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number at any time unless and until instructed in writing by the Company. It is acknowledged by the Holder that neither the Company nor the Warrant Agent is not representing to such Holder that such calculation is in compliance with Section 13(d) of the 1934 Act and such Holder is solely responsible for any schedules required to be filed in accordance therewith. For any reason at any time, upon the written or oral request of the Holder, the Company shall within two (2) trading days confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding, to the extent that the Company does not believe, in its sole discretion, that such information constitutes material non-public information of the Company. To the extent that the limitation contained in this paragraph Section 2(c) applies, the determination of whether such this Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Partiessuch Holder) and of which a portion of such this Warrant is exercisable shall be in the sole discretion of the a Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether such this Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Partiessuch Holder) and of which portion of such this Warrant is exercisable, in each case subject to such aggregate percentage limitation, and neither the Company nor the Warrant Agent shall have any no obligation to verify or confirm the accuracy of such determination. In addition, a determination under this paragraph Section 2(c) as to any group status shall be determined in accordance with Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(c), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Form 10-Q or Form 10-K, as the case may be, (y) a more recent public announcement by the Company or (z) any other more recent notice by the Company or the transfer agent of the Company setting forth the number of shares of Common Stock outstanding. Upon delivery the written request of a the Holder, the Company shall within two (2) Trading Days confirm in writing to such Holder the number of shares of Common Stock then outstanding. Notwithstanding the foregoing, by written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage which will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to Company, the Holder and the other Attribution Parties and not to any other holder of such Warrant. No prior inability to exercise a Warrant pursuant to this paragraph shall have any effect on the applicability of may waive the provisions of this paragraph with respect Section 2(c) (but such waiver will not affect any other holder) to any subsequent determination change the beneficial ownership limitation such percentage of exercisability. The the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant, as the Holder shall determine, in its sole discretion, subject to Section 2(d), and the provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this paragraph to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this paragraph or to make changes or supplements necessary or desirable to properly give effect to such limitation.Section 2(c) shall
Appears in 1 contract
Samples: Preferred Stock Purchase Warrant (Innovate Biopharmaceuticals, Inc.)
Percentage Limitation. Any Holder may notify Notwithstanding anything herein to the contrary, the Company in writing immediately prior to becoming a Holder in the event such Holder elects not to be subject to the provisions contained in Section 2(d) of the form of Warrant Certificate. Unless the election is made by a Holder, the Warrant Agent shall not effect the exercise issue to any Holder any shares of any portion of the Holder’s WarrantCommon Stock, and the Holder shall not have the right to exercise any portion of its Warrant, including pursuant to the terms and conditions of such Warrant and any such rights herein, including, without limitation, any exercise shall be null and void and treated as if never maderights, to the extent that after giving effect such shares, when added to the number of shares of Common Stock then beneficially owned by such exercise, the Holder and its affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with such Holder for purposes of Section 13(d) of the Securities Exchange Act, would cause the total number of shares of Common Stock beneficially owned by such Holder and any such Persons to exceed 19.999% of the total number of outstanding shares of Common Stock of the Company at the time of such issuance (calculated the “Maximum Aggregate Share Amount”), provided, however, that this Section 2(d) shall not apply to the exercise of this Warrant in connection with any Fundamental Transaction (as defined below) in which the Company is acquired by a third party, whether by merger or stock purchase. For purposes of this Section 2(d), beneficial ownership shall be determined in accordance with Section 13(d) of the 0000 XxxExchange Act and the rules and regulations promulgated thereunder. If on any attempted exercise of this Warrant other than in connection with a Fundamental Transaction, the issuance of Warrant Shares would exceed the Maximum Aggregate Share Amount, then the Company shall issue to the Holder requesting a Warrant exercise such number of Warrant Shares as may be issued below the Maximum Aggregate Share Amount and, with respect to the remainder of the aggregate number of Warrant Shares, this Warrant shall remain exercisable, subject to this Section 2(d). Notwithstanding anything to the contrary contained in this Section 2(d), the limitations contained herein shall not apply unless (i) such limitations are required under Nasdaq Global Market Rule 5635 or (ii) the Holder has, by providing the Company with written notice, lowered the Maximum Aggregate Share Amount to a percentage below 19.999% of the total number of outstanding shares of Common Stock would be aggregated (such amount being the “Adjusted Maximum Aggregate Share Amount”). Upon providing the Company with the Holder’s for purposes of Section 13(d) of the 1934 Act (collectivelyat least 61 days prior written notice, the “Attribution Parties”), Holder may increase the Adjusted Maximum Aggregate Share Amount up to the Warrant Agent’s knowledge, would beneficially own in excess of 4.9919.999% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of , provided, however, that in the foregoing sentence, event that Nasdaq Global Market Rule 5635 does not require the aggregate number of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of its Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (A) exercise of the remaining, unexercised portion of the Warrant beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants, including other Warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation limitations contained in this paragraph. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding shares of Common Stock the Holder may acquire upon the exercise of such Warrant without exceeding the Maximum Percentage2(c), the Holder may rely on increase the number Adjusted Maximum Aggregate Share Amount above 19.999% of outstanding the shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company or its transfer agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Notice of Exercise from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Notice of Exercise would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this paragraph, to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be acquired pursuant to such Notice of Exercise (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. The Warrant Agent shall have no duty or obligation under the preceding sentence and otherwise under this paragraph to determine or confirm whether the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number at any time unless and until instructed in writing by the Company. It is acknowledged by the Holder that neither the Company nor the Warrant Agent is representing to such Holder that such calculation is in compliance with Section 13(d) of the 1934 Act and such Holder is solely responsible for any schedules required to be filed in accordance therewith. For any reason at any time, upon the written or oral request of the Holder, the Company shall within two (2) trading days confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding, to the extent that the Company does not believe, in its sole discretion, that such information constitutes material non-public information of the Company. To the extent that the limitation contained in this paragraph applies, the determination of whether such Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Parties) and of which portion of such Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether such Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Parties) and of which portion of such Warrant is exercisable, in each case subject to such aggregate percentage limitation, and neither the Company nor the Warrant Agent shall have any obligation to verify or confirm the accuracy of such determination. In addition, a determination under this paragraph as to any group status shall be determined in accordance with Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder. Upon delivery of a written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day immediately after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of such Warrant. No prior inability to exercise a Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this paragraph to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this paragraph or to make changes or supplements necessary or desirable to properly give giving effect to such limitationexercise.
Appears in 1 contract
Percentage Limitation. Any Holder may notify the Company in writing immediately prior to becoming a Holder in the event such Holder elects not to be subject 1 Notwithstanding anything to the provisions contrary contained herein, other than as provided in Section 2(d2(f) of and Section 3(c), the form number of Warrant Certificate. Unless Shares that may be acquired by the election is made by a Holder, the Warrant Agent shall not effect the Holder upon any exercise of any portion of the Holder’s Warrant, and the Holder shall not have the right to exercise any portion of its Warrant, pursuant to the terms and conditions of such this Warrant and any such exercise (or otherwise in respect hereof) shall be null and void and treated as if never made, limited to the extent that after giving effect necessary to ensure that, following such exerciseexercise (or other issuance), the total number of shares of Common Stock then beneficially owned by the Holder and its affiliates and any other Persons whose beneficial ownership (calculated in accordance with Section 13(d) of the 0000 Xxx) of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Securities Exchange Act of 1934, as amended (collectively, the “Attribution Parties1934 Act”), to the Warrant Agent’s knowledge, would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the 1934 Act and the rules and regulations promulgated thereunder, including any “group” of which the Holder is a member, does not exceed [4.999]% of the total number of then issued and outstanding shares of Common Stock outstanding immediately after giving effect to (including for such exercise. For purposes of purpose the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of its Warrant with respect to which the determination of such sentence is exercise), it being made, but shall exclude shares of Common Stock which would be issuable upon (A) exercise of the remaining, unexercised portion of the Warrant beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants, including other Warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this paragraph. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding shares of Common Stock the Holder may acquire upon the exercise of such Warrant without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company or its transfer agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Notice of Exercise from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Notice of Exercise would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this paragraph, to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be acquired pursuant to such Notice of Exercise (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. The Warrant Agent shall have no duty or obligation under the preceding sentence and otherwise under this paragraph to determine or confirm whether the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number at any time unless and until instructed in writing by the Company. It is acknowledged by the Holder that neither the Company nor the Warrant Agent is not representing to such Holder that such calculation is in compliance with Section 13(d) of the 1934 Act and such Holder is solely responsible for any schedules required to be filed in accordance therewith. For any reason at any time, upon the written or oral request of the Holder, the Company shall within two (2) trading days confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding, to the extent that the Company does not believe, in its sole discretion, that such information constitutes material non-public information of the Company. To the extent that the limitation contained in this paragraph Section 2(d) applies, the determination of whether such this Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Partiessuch Holder) and of which a portion of such this Warrant is exercisable shall be in the sole discretion of the a Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether such this Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Partiessuch Holder) and of which portion of such this Warrant is exercisable, in each case subject to such aggregate percentage limitation, and neither the Company nor the Warrant Agent shall have any no obligation to verify or confirm the accuracy of such determination. In addition, a determination under this paragraph Section 2(d) as to any group status shall be determined in accordance with Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Form 10-Q or Form 10-K, as the case may be, (y) a more recent public announcement by the Company or (z) any other more recent notice by the Company or the transfer agent of the Company (the “Transfer Agent”) setting forth the number 1 To be added with appropriate percentages if desired by any investor. of shares of Common Stock outstanding. Upon delivery the written request of a the Holder, the Company shall within three (3) Trading Days confirm in writing to such Holder the number of shares of Common Stock then outstanding. Notwithstanding the foregoing, by written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage which will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to Company, the Holder and the other Attribution Parties and not to any other holder of such Warrant. No prior inability to exercise a Warrant pursuant to this paragraph shall have any effect on the applicability of may waive the provisions of this paragraph Section 2(d) (but such waiver will not affect any other holder) or change the beneficial ownership limitation to such percentage of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant, as the Holder shall determine, in its sole discretion, subject to Section 2(e), and the provisions of this Section 2(d) shall continue to apply[; provided that in no event shall such percentage limitation be increased to more than 9.999%]. Upon such a change by a Holder of the beneficial ownership limitation from such [4.999]% limitation to such other percentage limitation, the beneficial ownership limitation may not be further waived by such Holder without first providing the minimum 61-day notice required by this Section 2(d).] [e) Notwithstanding anything to the contrary contained herein, including Section 2(d), other than as provided in Section 2(f) and Section 3(c), the Company shall not effect any exercise of this Warrant, and the Holder shall not be entitled to exercise this Warrant for a number of Warrant Shares in excess of that number of Warrant Shares which, upon giving effect to such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder, including any “group” of which the Holder is a member, to exceed 19.99% of the total number of issued and outstanding shares of Common Stock of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Act to exceed 19.99% of the combined voting power of all of the securities of the Company then outstanding following such exercise. For purposes of this Section 2(e), the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Act shall include the shares of Common Stock issuable upon the exercise of this Warrant with respect to any subsequent which such determination is being made, but shall exclude the number of exercisability. The provisions shares of this paragraph shall Common Stock which would be construed issuable upon (x) exercise of the remaining unexercised and implemented in a manner otherwise than in strict conformity with the terms of this paragraph to the extent necessary to correct this paragraph or any non-cancelled portion of this paragraph Warrant by the Holder and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which may would entitle the holder thereof to acquire at any time Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and is beneficially owned by the Holder or any of its Affiliates and other Persons whose beneficial ownership of Common Stock would be defective or inconsistent aggregated with the intended beneficial ownership limitation contained in this paragraph or to make changes or supplements necessary or desirable to properly give effect to such limitationHolder’s for purposes of Section 13(d) of the 1934 Act.]2 2 To be added only for investors which would otherwise acquire more than 19.99%.
Appears in 1 contract
Percentage Limitation. Any Holder may notify the Company in writing immediately prior to becoming a Holder in the event such Holder elects not to be subject 1 Notwithstanding anything to the provisions contrary contained herein, other than as provided in Section 2(d2(f) of and Section 3(c), the form number of Warrant Certificate. Unless Shares that may be acquired by the election is made by a Holder, the Warrant Agent shall not effect the Holder upon any exercise of any portion of the Holder’s Warrant, and the Holder shall not have the right to exercise any portion of its Warrant, pursuant to the terms and conditions of such this Warrant and any such exercise (or otherwise in respect hereof) shall be null and void and treated as if never made, limited to the extent that after giving effect necessary to ensure that, following such exerciseexercise (or other issuance), the total number of shares of Common Stock then beneficially owned by the Holder and its affiliates and any other Persons whose beneficial ownership (calculated in accordance with Section 13(d) of the 0000 Xxx) of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Securities Exchange Act of 1934, as amended (collectively, the “Attribution Parties1934 Act”), to and the Warrant Agent’s knowledgerules and regulations promulgated thereunder, would beneficially own in excess including any “group” of 4.99% (which the “Maximum Percentage”) Holder is a member, does not exceed [9.999]% of the total number of then issued and outstanding shares of Common Stock outstanding immediately after giving effect to (including for such exercise. For purposes of purpose the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of its Warrant with respect to which the determination of such sentence is exercise), it being made, but shall exclude shares of Common Stock which would be issuable upon (A) exercise of the remaining, unexercised portion of the Warrant beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants, including other Warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this paragraph. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding shares of Common Stock the Holder may acquire upon the exercise of such Warrant without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company or its transfer agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Notice of Exercise from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Notice of Exercise would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this paragraph, to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be acquired pursuant to such Notice of Exercise (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. The Warrant Agent shall have no duty or obligation under the preceding sentence and otherwise under this paragraph to determine or confirm whether the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number at any time unless and until instructed in writing by the Company. It is acknowledged by the Holder that neither the Company nor the Warrant Agent is not representing to such Holder that such calculation is in compliance with Section 13(d) of the 1934 Act and such Holder is solely responsible for any schedules required to be filed in accordance therewith. For any reason at any time, upon the written or oral request of the Holder, the Company shall within two (2) trading days confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding, to the extent that the Company does not believe, in its sole discretion, that such information constitutes material non-public information of the Company. To the extent that the limitation contained in this paragraph Section 2(d) applies, the determination of whether such this Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Partiessuch Holder) and of which a portion of such this Warrant is exercisable shall be in the sole discretion of the a Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether such this Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Partiessuch Holder) and of which portion of such this Warrant is exercisable, in each case subject to such aggregate percentage limitation, and neither the Company nor the Warrant Agent shall have any no obligation to verify or confirm the accuracy of such determination. In addition, a determination under this paragraph Section 2(d) as to any group status shall be determined in accordance with Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares 1 To be added with appropriate percentages if desired by any investor. of Common Stock as reflected in (x) the Company’s most recent Form 10-Q or Form 10-K, as the case may be, (y) a more recent public announcement by the Company or (z) any other more recent notice by the Company or the transfer agent of the Company (the “Transfer Agent”) setting forth the number of shares of Common Stock outstanding. Upon delivery the written request of a the Holder, the Company shall within three (3) Trading Days confirm in writing to such Holder the number of shares of Common Stock then outstanding. Notwithstanding the foregoing, by written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage which will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to Company, the Holder and the other Attribution Parties and not to any other holder of such Warrant. No prior inability to exercise a Warrant pursuant to this paragraph shall have any effect on the applicability of may waive the provisions of this paragraph Section 2(d) (but such waiver will not affect any other holder) or change the beneficial ownership limitation to such percentage of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant, as the Holder shall determine, in its sole discretion, subject to Section 2(e), and the provisions of this Section 2(d) shall continue to apply[; provided that in no event shall such percentage limitation be increased to more than [19.99]%]. Upon such a change by a Holder of the beneficial ownership limitation from such [9.999]% limitation to such other percentage limitation, the beneficial ownership limitation may not be further waived by such Holder without first providing the minimum 61-day notice required by this Section 2(d).] [e) Notwithstanding anything to the contrary contained herein, including Section 2(d), other than as provided in Section 2(f) and Section 3(c), the Company shall not effect any exercise of this Warrant, and the Holder shall not be entitled to exercise this Warrant for a number of Warrant Shares in excess of that number of Warrant Shares which, upon giving effect to such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder, including any “group” of which the Holder is a member, to exceed 19.99% of the total number of issued and outstanding shares of Common Stock of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Act to exceed 19.99% of the combined voting power of all of the securities of the Company then outstanding following such exercise. For purposes of this Section 2(e), the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Act shall include the shares of Common Stock issuable upon the exercise of this Warrant with respect to any subsequent which such determination is being made, but shall exclude the number of exercisability. The provisions shares of this paragraph shall Common Stock which would be construed issuable upon (x) exercise of the remaining unexercised and implemented in a manner otherwise than in strict conformity with the terms of this paragraph to the extent necessary to correct this paragraph or any non-cancelled portion of this paragraph Warrant by the Holder and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which may would entitle the holder thereof to acquire at any time Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and is beneficially owned by the Holder or any of its Affiliates and other Persons whose beneficial ownership of Common Stock would be defective or inconsistent aggregated with the intended beneficial ownership limitation contained in this paragraph or to make changes or supplements necessary or desirable to properly give effect to such limitationHolder’s for purposes of Section 13(d) of the 1934 Act.]2 2 To be added only for investors which would otherwise acquire more than 19.99%.
Appears in 1 contract
Percentage Limitation. Any Holder may notify the Company in writing immediately prior to becoming a Holder in the event such Holder elects not to be subject to the provisions contained in Section 2(d) of the form of Warrant Certificate. Unless the election is made by a Holder, the Warrant Agent shall not effect the exercise of any portion of the Holder’s Warrant, and the Holder shall not have the right to exercise any portion of its Warrant, pursuant to the terms and conditions of such Warrant and any such exercise shall be null and void and treated as if never made, to the extent that after giving effect to such exercise, the Holder and its affiliates and any other Persons whose beneficial ownership (calculated in accordance with Section 13(d) of the 0000 Xxx) of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Act (collectively, the “Attribution Parties”), to the Warrant Agent’s knowledge, would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of its Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (A) exercise of the remaining, unexercised portion of the Warrant beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants, including other Warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this paragraph. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding shares of Common Stock the Holder may acquire upon the exercise of such Warrant without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company or its transfer agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Notice of Exercise from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Notice of Exercise would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this paragraph, to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be acquired pursuant to such Notice of Exercise (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. The Warrant Agent shall have no duty or obligation under the preceding sentence and otherwise under this paragraph to determine or confirm whether the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number at any time unless and until instructed in writing by the Company. It is acknowledged by the Holder that neither the Company nor the Warrant Agent is representing to such Holder that such calculation is in compliance with Section 13(d) of the 1934 Act and such Holder is solely responsible for any schedules required to be filed in accordance therewith. For any reason at any time, upon the written or oral request of the Holder, the Company shall within two (2) trading days confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding, to the extent that the Company does not believe, in its sole discretion, that such information constitutes material non-public information of the Company. To the extent that the limitation contained in this paragraph applies, the determination of whether such Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Parties) and of which portion of such Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether such Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Parties) and of which portion of such Warrant is exercisable, in each case subject to such aggregate percentage limitation, and neither the Company nor the Warrant Agent shall have any obligation to verify or confirm the accuracy of such determination. In addition, a determination under this paragraph as to any group status shall be determined in accordance with Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder. Upon delivery of a written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of such Warrant. No prior inability to exercise a Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this paragraph to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this paragraph or to make changes or supplements necessary or desirable to properly give effect to such limitation.the
Appears in 1 contract
Samples: Warrant Agreement (Immunomedics Inc)
Percentage Limitation. Any Holder may notify the Company in writing immediately prior to becoming a Holder in the event such Holder elects not to be subject 1 Notwithstanding anything to the provisions contrary contained herein, other than as provided in Section 2(d2(f) of and Section 3(c), the form number of Warrant Certificate. Unless Shares that may be acquired by the election is made by a Holder, the Warrant Agent shall not effect the Holder upon any exercise of any portion of the Holder’s Warrant, and the Holder shall not have the right to exercise any portion of its Warrant, pursuant to the terms and conditions of such this Warrant and any such exercise (or otherwise in respect hereof) shall be null and void and treated as if never made, limited to the extent that after giving effect necessary to ensure that, following such exerciseexercise (or other issuance), the total number of shares of Common Stock then beneficially owned by the Holder and its affiliates and any other Persons whose beneficial ownership (calculated in accordance with Section 13(d) of the 0000 Xxx) of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Securities Exchange Act of 1934, as amended (collectively, the “Attribution Parties1934 Act”), to the Warrant Agent’s knowledge, would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the 1934 Act and the rules and regulations promulgated thereunder, including any “group” of which the Holder is a member, does not exceed [4.999]% of the total number of then issued and outstanding shares of Common Stock outstanding immediately after giving effect to (including for such exercise. For purposes of purpose the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of its Warrant with respect to which the determination of such sentence is exercise), it being made, but shall exclude shares of Common Stock which would be issuable upon (A) exercise of the remaining, unexercised portion of the Warrant beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants, including other Warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this paragraph. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding shares of Common Stock the Holder may acquire upon the exercise of such Warrant without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company or its transfer agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Notice of Exercise from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Notice of Exercise would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this paragraph, to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be acquired pursuant to such Notice of Exercise (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. The Warrant Agent shall have no duty or obligation under the preceding sentence and otherwise under this paragraph to determine or confirm whether the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number at any time unless and until instructed in writing by the Company. It is acknowledged by the Holder that neither the Company nor the Warrant Agent is not representing to such Holder that such calculation is in compliance with Section 13(d) of the 1934 Act and such Holder is solely responsible for any schedules required to be filed in accordance therewith. For any reason at any time, upon the written or oral request of the Holder, the Company shall within two (2) trading days confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding, to the extent that the Company does not believe, in its sole discretion, that such information constitutes material non-public information of the Company. To the extent that the limitation contained in this paragraph Section 2(d) applies, the determination of whether such this Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Partiessuch Holder) and of which a portion of such this Warrant is exercisable shall be in the sole discretion of the a Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether such this Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Partiessuch Holder) and of which portion of such this Warrant is exercisable, in each case subject to such aggregate percentage limitation, and neither the Company nor the Warrant Agent shall have any no obligation to verify or confirm the accuracy of such determination. In addition, a determination under this paragraph Section 2(d) as to any group status shall be determined in accordance with Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of 1 To be added with appropriate percentages if desired by any investor. outstanding shares of Common Stock as reflected in (x) the Company’s most recent Form 10-Q or Form 10-K, as the case may be, (y) a more recent public announcement by the Company or (z) any other more recent notice by the Company or the transfer agent of the Company (the “Transfer Agent”) setting forth the number of shares of Common Stock outstanding. Upon delivery the written request of a the Holder, the Company shall within three (3) Trading Days confirm in writing to such Holder the number of shares of Common Stock then outstanding. Notwithstanding the foregoing, by written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage which will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to Company, the Holder and the other Attribution Parties and not to any other holder of such Warrant. No prior inability to exercise a Warrant pursuant to this paragraph shall have any effect on the applicability of may waive the provisions of this paragraph Section 2(d) (but such waiver will not affect any other holder) or change the beneficial ownership limitation to such percentage of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant, as the Holder shall determine, in its sole discretion, subject to Section 2(e), and the provisions of this Section 2(d) shall continue to apply[; provided that in no event shall such percentage limitation be increased to more than 9.999%]. Upon such a change by a Holder of the beneficial ownership limitation from such [4.999]% limitation to such other percentage limitation, the beneficial ownership limitation may not be further waived by such Holder without first providing the minimum 61-day notice required by this Section 2(d).] [e) Notwithstanding anything to the contrary contained herein, including Section 2(d), other than as provided in Section 2(f) and Section 3(c), the Company shall not effect any exercise of this Warrant, and the Holder shall not be entitled to exercise this Warrant for a number of Warrant Shares in excess of that number of Warrant Shares which, upon giving effect to such exercise, would cause (i) the aggregate number of shares of Common Stock beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder, including any “group” of which the Holder is a member, to exceed 19.99% of the total number of issued and outstanding shares of Common Stock of the Company following such exercise, or (ii) the combined voting power of the securities of the Company beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Act to exceed 19.99% of the combined voting power of all of the securities of the Company then outstanding following such exercise. For purposes of this Section 2(e), the aggregate number of shares of Common Stock or voting securities beneficially owned by the Holder and its Affiliates and any other Persons whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Act shall include the shares of Common Stock issuable upon the exercise of this Warrant with respect to any subsequent which such determination is being made, but shall exclude the number of exercisability. The provisions shares of this paragraph shall Common Stock which would be construed issuable upon (x) exercise of the remaining unexercised and implemented in a manner otherwise than in strict conformity with the terms of this paragraph to the extent necessary to correct this paragraph or any non-cancelled portion of this paragraph Warrant by the Holder and (y) exercise or conversion of the unexercised, non-converted or non-cancelled portion of any other securities of the Company that do not have voting power (including without limitation any securities of the Company which may would entitle the holder thereof to acquire at any time Common Stock, including without limitation any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock), is subject to a limitation on conversion or exercise analogous to the limitation contained herein and is beneficially owned by the Holder or any of its Affiliates and other Persons whose beneficial ownership of Common Stock would be defective or inconsistent aggregated with the intended beneficial ownership limitation contained in this paragraph or to make changes or supplements necessary or desirable to properly give effect to such limitationHolder’s for purposes of Section 13(d) of the 1934 Act.]2 2 To be added only for investors which would otherwise acquire more than 19.99%.
Appears in 1 contract
Percentage Limitation. Any Holder may notify the Company in writing immediately prior to becoming a Holder in the event such Holder elects not to be subject 1 Notwithstanding anything herein to the provisions contained in Section 2(d) of contrary, the form number of Warrant Certificate. Unless Shares that may be acquired by the election is made by a Holder, the Warrant Agent shall not effect the Holder upon any exercise of any portion of the Holder’s Warrant, and the Holder shall not have the right to exercise any portion of its Warrant, pursuant to the terms and conditions of such this Warrant and any such exercise (or otherwise in respect hereof) shall be null and void and treated as if never made, limited to the extent that after giving effect necessary to ensure that, following such exerciseexercise (or other issuance), the total number of shares of Common Stock then beneficially owned by the Holder and its affiliates and any other Persons whose beneficial ownership (calculated in accordance with Section 13(d) of the 0000 Xxx1934 Act) of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Act (collectivelyAct, the “Attribution Parties”), to the Warrant Agent’s knowledge, would beneficially own in excess of 4.99does not exceed 4.999% (the “Maximum Percentage”) of the total number of then issued and outstanding shares of Common Stock outstanding immediately after giving effect to (including for such exercise. For purposes of purpose the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of its Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (Aexercise) exercise of the remaining, unexercised portion of the Warrant beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants, including other Warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this paragraph. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding shares of Common Stock the Holder may acquire upon the exercise of such Warrant without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company or its transfer agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share NumberBeneficial Ownership Limitation”). If the Company receives a Notice of Exercise from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Notice of Exercise would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this paragraph, to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be acquired pursuant to such Notice of Exercise (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. The Warrant Agent shall have no duty or obligation under the preceding sentence and otherwise under this paragraph to determine or confirm whether the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number at any time unless and until instructed in writing by the Company. It is it being acknowledged by the Holder that neither the Company nor the Warrant Agent is not representing to such Holder that such calculation is in compliance with Section 13(d) of the 1934 Act and such Holder is solely responsible for any schedules required to be filed in accordance therewith. For any reason at any time, upon the written or oral request of the Holder, the Company shall within two (2) trading days confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding, to the extent that the Company does not believe, in its sole discretion, that such information constitutes material non-public information of the Company. To the extent that the limitation contained in this paragraph Section 2(d) applies, the determination of whether such this Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution PartiesHolder) and of which portion of such this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether such this Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution PartiesHolder) and of which portion of such this Warrant is exercisable, in each case subject to such aggregate percentage limitation, and neither the Company nor the Warrant Agent shall have any no obligation to verify or confirm the accuracy of such determination. In addition, a determination under this paragraph Section 2(d) as to any group status shall be determined in accordance with Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Form 10-Q or Form 10-K, as the case may be, (y) a more recent public announcement by the Company or (z) any other notice by the Company or its transfer agent setting forth the number of shares of Common Stock outstanding. Upon delivery the written request of a written the Holder, the Company shall within three (3) trading days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. The Holder, upon notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess Beneficial Ownership Limitation provisions of 9.99% as specified in such notice; this Section 2(d), provided that (i) any such increase or decrease in the Maximum Percentage Beneficial Ownership Limitation will not be effective until the sixty-first (61st) 61st day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of such Warrant. No prior inability to exercise a Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisabilityCompany. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this paragraph to the extent necessary Section 2(d) to correct this paragraph (or any portion of this paragraph hereof) which may be defective or inconsistent with the intended beneficial ownership limitation Beneficial Ownership Limitation herein contained in this paragraph or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.] 1 To be added if desired by any investor.
Appears in 1 contract
Percentage Limitation. Any The Holder may notify the Company in writing immediately prior to becoming a Holder in the event such Holder elects not to be subject to the provisions contained in this Section 2(d) of the form of Warrant Certificate). Unless the election is made by a Holder, the Warrant Agent shall not effect the exercise of any portion of the Holder’s this Warrant, and the Holder shall not have the right to exercise any portion of its this Warrant, pursuant to the terms and conditions of such this Warrant and any such exercise shall be null and void and treated as if never made, to the extent that after giving effect to such exercise, the Holder and its affiliates and any other Persons whose beneficial ownership (calculated in accordance with Section 13(d) of the 0000 1900 Xxx) of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Act (collectively, the “Attribution Parties”), to the Warrant Agent’s knowledge, would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of its this Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (A) exercise of the remaining, unexercised portion of the this Warrant beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants, including other Warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this paragraphSection 2(d). Except as set forth in the preceding sentence, for purposes of this paragraphSection 2(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding shares of Common Stock the Holder may acquire upon the exercise of such this Warrant without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company or its transfer agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Notice of Exercise from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Notice of Exercise would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this paragraphSection 2(d), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be acquired pursuant to such Notice of Exercise (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, practicable the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. The Warrant Agent shall have no duty or obligation under the preceding sentence and otherwise under this paragraph Section 2(d) to determine or confirm whether the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number at any time unless and until instructed in writing by the Company. It is acknowledged by the Holder that neither the Company nor the Warrant Agent is representing to such Holder that such calculation is in compliance with Section 13(d) of the 1934 Act and such Holder is solely responsible for any schedules required to be filed in accordance therewith. For any reason at any time, upon the written or oral request of the Holder, the Company shall within two (2) trading days confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding, to the extent that the Company does not believe, in its sole discretion, that such information constitutes material non-public information of the Company. To the extent that the limitation contained in this paragraph Section 2(d) applies, the determination of whether such this Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Parties) and of which portion of such this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether such this Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Parties) and of which portion of such this Warrant is exercisable, in each case subject to such aggregate percentage limitation, and neither the Company nor the Warrant Agent shall have any obligation to verify or confirm the accuracy of such determination. In addition, a determination under this paragraph Section 2(d) as to any group status shall be determined in accordance with Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder. Upon delivery of a written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of such this Warrant. No prior inability to exercise a this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this paragraph Section 2(d) to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this paragraph Section 2(d) or to make changes or supplements necessary or desirable to properly give effect to such limitation.
Appears in 1 contract
Percentage Limitation. Any Holder may notify the Company in writing immediately prior to becoming a Holder in the event such Holder elects not to be subject i. Notwithstanding anything herein to the provisions contained in Section 2(d) of contrary, the form number of Warrant Certificate. Unless Shares that may be acquired by the election is made by a Holder, the Warrant Agent shall not effect the Holder upon any exercise of any portion of the Holder’s Warrant, and the Holder shall not have the right to exercise any portion of its Warrant, pursuant to the terms and conditions of such this Warrant and any such exercise (or otherwise in respect hereof) shall be null and void and treated as if never made, limited to the extent that after giving effect necessary to ensure that, following such exerciseexercise (or other issuance), the total number of shares of Common Stock then beneficially owned by the Holder and its affiliates and any other Persons whose beneficial ownership (calculated in accordance with Section 13(d) of the 0000 Xxx) of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Act (collectivelyAct, the “Attribution Parties”), to the Warrant Agent’s knowledge, would beneficially own in excess of 4.99does not exceed 9.999% (the “Maximum Percentage”) of the total number of then issued and outstanding shares of Common Stock outstanding immediately after giving effect to (including for such exercise. For purposes of purpose the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of its Warrant with respect to which the determination of such sentence is exercise), it being made, but shall exclude shares of Common Stock which would be issuable upon (A) exercise of the remaining, unexercised portion of the Warrant beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants, including other Warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this paragraph. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding shares of Common Stock the Holder may acquire upon the exercise of such Warrant without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company or its transfer agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Notice of Exercise from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Notice of Exercise would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this paragraph, to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be acquired pursuant to such Notice of Exercise (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. The Warrant Agent shall have no duty or obligation under the preceding sentence and otherwise under this paragraph to determine or confirm whether the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number at any time unless and until instructed in writing by the Company. It is acknowledged by the Holder that neither the Company nor the Warrant Agent is not representing to such Holder that such calculation is in compliance with Section 13(d) of the 1934 Act and such Holder is solely responsible for any schedules required to be filed in accordance therewith. For any reason at any time, upon the written or oral request of the Holder, the Company shall within two (2) trading days confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding, to the extent that the Company does not believe, in its sole discretion, that such information constitutes material non-public information of the Company. To the extent that the limitation contained in this paragraph Section 2(d)(i) applies, the determination of whether such this Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Partiessuch Holder) and of which a portion of such this Warrant is exercisable shall be in the sole discretion of the a Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether such this Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Partiessuch Holder) and of which portion of such this Warrant is exercisable, in each case subject to such aggregate percentage limitation, and neither the Company nor the Warrant Agent shall have any no obligation to verify or confirm the accuracy of such determination. In addition, a determination under this paragraph Section 2(d)(i) as to any group status shall be determined in accordance with Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(d)(i), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Form 10-Q or Form 10-K, as the case may be, (y) a more recent public announcement by the Company or (z) any other notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon delivery the written request of a the Holder, the Company shall within three (3) trading days confirm orally and in writing to such Holder the number of shares of Common Stock then outstanding. By written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage which will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to Company, the Holder and the other Attribution Parties and not to any other holder of such Warrant. No prior inability to exercise a Warrant pursuant to this paragraph shall have any effect on the applicability of may waive the provisions of this paragraph Section 2(d)(i) (but such waiver will not affect any other holder) to change the beneficial ownership limitation to such percentage of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant as the Holder shall determine, in its sole discretion, subject to Section 2(d)(ii), and the provisions of this Section 2(d)(i) shall continue to apply. Upon such a change by a Holder of the beneficial ownership limitation from such 9.999% limitation to such other percentage limitation, the beneficial ownership limitation may not be further waived by such Holder without first providing the minimum notice required by this Section 2(d)(i).
ii. Notwithstanding anything herein to the contrary, including Section 2(d)(i), the Company shall not issue to any Holder any shares of Common Stock, including pursuant to any rights herein, including, without limitation, any exercise rights, to the extent such shares, when added to the number of shares of Common Stock then beneficially owned by such Holder and any Persons whose beneficial ownership of Common Stock would be aggregated with such Holder for purposes of Section 13(d) of the 1934 Act, would cause the total number of shares of Common Stock beneficially owned by such Holder and any such Persons to exceed 19.999% of the total number of outstanding shares of Common Stock of the Company at the time of such issuance (the “Maximum Aggregate Share Amount”). For purposes of this Section 2(d)(ii), beneficial ownership shall be determined in accordance with Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder. If on any attempted exercise of this Warrant other than in connection with a Fundamental Transaction, the issuance of Warrant Shares would exceed the Maximum Aggregate Share Amount, then the Company shall issue to the Holder requesting a Warrant exercise such number of Warrant Shares as may be issued below the Maximum Aggregate Share Amount and, with respect to any subsequent determination the remainder of exercisabilitythe aggregate number of Warrant Shares, this Warrant shall remain exercisable, subject to this Section 2(d)(ii). The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this paragraph Notwithstanding anything to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contrary contained in this paragraph Section 2(d)(ii), the limitations contained herein shall not apply unless such limitations are required under Nasdaq Global Market Rule 5635.
iii. This Section 2(d) shall not apply to the exercise of this Warrant in connection with any Fundamental Transaction (as defined below) in which the Company is acquired by a third party, whether by merger or to make changes or supplements necessary or desirable to properly give effect to such limitationstock purchase.
Appears in 1 contract
Percentage Limitation. Any Holder may notify Notwithstanding anything herein to the contrary, the Company in writing immediately prior to becoming a Holder in the event such Holder elects not to be subject to the provisions contained in Section 2(d) of the form of Warrant Certificate. Unless the election is made by a Holder, the Warrant Agent shall not effect the exercise issue to any Holder any shares of any portion of the Holder’s WarrantCommon Stock, and the Holder shall not have the right to exercise any portion of its Warrant, including pursuant to the terms and conditions of such Warrant and any such rights herein, including, without limitation, any exercise shall be null and void and treated as if never maderights, to the extent that after giving effect such shares, when added to the number of shares of Common Stock then beneficially owned by such exercise, the Holder and its affiliates and any other Persons whose beneficial ownership (calculated in accordance with Section 13(d) of the 0000 Xxx) of Common Stock would be aggregated with the Holder’s such Holder for purposes of Section 13(d) of the 1934 Act (collectively, the “Attribution Parties”), to the Warrant Agent’s knowledgeSecurities Exchange Act, would beneficially own in excess of 4.99% (cause the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate total number of shares of Common Stock beneficially owned by the such Holder and the other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of its Warrant with respect any such Persons to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (A) exercise exceed 19.999% of the remaining, unexercised portion of the Warrant beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants, including other Warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this paragraph. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the total number of outstanding shares of Common Stock of the Holder may acquire upon Company at the time of such issuance (the “Maximum Aggregate Share Amount”), provided, however, that this Section 2(d) shall not apply to the exercise of such this Warrant without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing connection with the SEC, as the case may be, (y) a more recent public announcement by any Fundamental Transaction in which the Company is acquired by a third party, whether by merger or (z) any other written notice by stock purchase. Upon the Company or its transfer agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Notice of Exercise from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Notice of Exercise would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this paragraph, to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be acquired pursuant to such Notice of Exercise (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. The Warrant Agent shall have no duty or obligation under the preceding sentence and otherwise under this paragraph to determine or confirm whether the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number at any time unless and until instructed in writing by the Company. It is acknowledged by the Holder that neither the Company nor the Warrant Agent is representing to such Holder that such calculation is in compliance with Section 13(d) of the 1934 Act and such Holder is solely responsible for any schedules required to be filed in accordance therewith. For any reason at any time, upon the reasonable written or oral request of the Holder, the Company shall within two (2) trading business days confirm orally and in writing or by electronic mail to the such Holder the number of shares of Common Stock then outstanding. For purposes of this Section 2(d), to the extent that the Company does not believe, in its sole discretion, that such information constitutes material non-public information of the Company. To the extent that the limitation contained in this paragraph applies, the determination of whether such Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Parties) and of which portion of such Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether such Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Parties) and of which portion of such Warrant is exercisable, in each case subject to such aggregate percentage limitation, and neither the Company nor the Warrant Agent shall have any obligation to verify or confirm the accuracy of such determination. In addition, a determination under this paragraph as to any group status beneficial ownership shall be determined in accordance with Section 13(d) of the 1934 Exchange Act and the rules and regulations promulgated thereunder. Upon delivery If on any attempted exercise of this Warrant other than in connection with a written notice Fundamental Transaction, the issuance of Warrant Shares would exceed the Maximum Aggregate Share Amount, then the Company shall issue to the CompanyHolder requesting a Warrant exercise such number of Warrant Shares as may be issued below the Maximum Aggregate Share Amount and, with respect to the remainder of the aggregate number of Warrant Shares, this Warrant shall remain exercisable, subject to this Section 2(d). Notwithstanding anything to the contrary contained in this Section 2(d), the limitations contained herein shall not apply unless (i) such limitations are required under NASDAQ Marketplace Rule 4350(i)(1)(B) or (ii) the Holder has, by providing the Company with written notice, lowered the Maximum Aggregate Share Amount to a percentage below 19.999% of the total number of outstanding shares of Common Stock (such amount being the “Adjusted Maximum Aggregate Share Amount”). Upon providing the Company with at least 61 days prior written notice, the Holder may from time increase the Adjusted Maximum Aggregate Share Amount up to time increase or decrease 19.999% of the Maximum Percentage shares of Common Stock outstanding immediately after giving effect to any other percentage not in excess of 9.99% as specified in such notice; provided exercise, provided, however, that (i) any such increase in the Maximum Percentage will event that NASDAQ Marketplace Rule 4350(i)(1)(B) does not be effective until require the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of such Warrant. No prior inability to exercise a Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this paragraph to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation limitations contained in this paragraph or to make changes or supplements necessary or desirable to properly give Section 2(c), the Holder may increase the Adjusted Maximum Aggregate Share Amount above 19.999% of the shares Common Stock outstanding immediately after giving effect to such limitationexercise.
Appears in 1 contract
Percentage Limitation. Any Holder may notify the Company in writing immediately prior to becoming a Holder in the event such Holder elects not to be subject 1 Notwithstanding anything to the provisions contrary contained in Section 2(d) of herein, the form number of Warrant Certificate. Unless Shares that may be acquired by the election is made by a Holder, the Warrant Agent shall not effect the Holder upon any exercise of any portion of the Holder’s Warrant, and the Holder shall not have the right to exercise any portion of its Warrant, pursuant to the terms and conditions of such this Warrant and any such exercise (or otherwise in respect hereof) shall be null and void and treated as if never made, limited to the extent that after giving effect necessary to ensure that, following such exerciseexercise (or other issuance), the total number of shares of Common Stock then beneficially owned by the Holder and its affiliates and any other Persons whose beneficial ownership (calculated in accordance with Section 13(d) of the 0000 Xxx) of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of the 1934 Securities Exchange Act of 1934, as amended (collectively, the “Attribution Parties1934 Act”), to the Warrant Agent’s knowledge, would beneficially own in excess of 4.99does not exceed 4.999% (the “Maximum Percentage”) of the total number of then issued and outstanding shares of Common Stock outstanding immediately after giving effect to (including for such exercise. For purposes of purpose the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of its Warrant with respect to which the determination of such sentence is exercise), it being made, but shall exclude shares of Common Stock which would be issuable upon (A) exercise of the remaining, unexercised portion of the Warrant beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants, including other Warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this paragraph. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding shares of Common Stock the Holder may acquire upon the exercise of such Warrant without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company or its transfer agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Notice of Exercise from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Notice of Exercise would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this paragraph, to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be acquired pursuant to such Notice of Exercise (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares. The Warrant Agent shall have no duty or obligation under the preceding sentence and otherwise under this paragraph to determine or confirm whether the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number at any time unless and until instructed in writing by the Company. It is acknowledged by the Holder that neither the Company nor the Warrant Agent is not representing to such Holder that such calculation is in compliance with Section 13(d) of the 1934 Act and such Holder is solely responsible for any schedules required to be filed in accordance therewith. For any reason at any time, upon the written or oral request of the Holder, the Company shall within two (2) trading days confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding, to the extent that the Company does not believe, in its sole discretion, that such information constitutes material non-public information of the Company. To the extent that the limitation contained in this paragraph Section 2(d) applies, the determination of whether such this Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Partiessuch Holder) and of which a portion of such this Warrant is exercisable shall be in the sole discretion of the a Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether such this Warrant is exercisable (in relation to other securities owned by the Holder and the other Attribution Partiessuch Holder) and of which portion of such this Warrant is exercisable, in each case subject to such aggregate percentage limitation, and neither the Company nor the Warrant Agent shall have any no obligation to verify or confirm the accuracy of such determination. In addition, a determination under this paragraph as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Form 10-Q or Form 10-K, as the case may be, (y) a more recent public announcement by the Company or (z) any other notice by the Company or the transfer agent of the Company setting forth the number of shares of Common Stock outstanding. Upon delivery the written request of the Holder, the Company shall within three (3) Trading Days confirm orally and in writing to such Holder the number of shares of Common Stock then outstanding. This provision shall not restrict the number of shares of Common Stock which a Holder may receive or beneficially own in order to determine the amount of securities or other consideration that such Holder may receive in the event of a Fundamental Transaction as contemplated in Section 3(c) of this Warrant. Notwithstanding the foregoing, by written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage which will not be effective until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to Company, the Holder and the other Attribution Parties and not to any other holder of such Warrant. No prior inability to exercise a Warrant pursuant to this paragraph shall have any effect on the applicability of may waive the provisions of this paragraph with respect Section 2(d) (but such waiver will not affect any other holder) or change the beneficial ownership limitation to any subsequent determination 9.999% of exercisability. The the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant, and the provisions of this paragraph Section 2(d) shall be construed and implemented in continue to apply. Upon such a manner otherwise than in strict conformity with change by a Holder of the terms of this paragraph to the extent necessary to correct this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation contained in this paragraph or to make changes or supplements necessary or desirable to properly give effect from such 4.999% limitation to such 9.999% limitation, the beneficial ownership limitation may not be further waived by such Holder.] 1 To be added if desired by any investor.
Appears in 1 contract
Samples: Security Agreement (Spring Bank Pharmaceuticals, Inc.)
