Common use of Treatment of Company Warrants Clause in Contracts

Treatment of Company Warrants. (a) Prior to the Closing, the Company shall provide a notice to the holders of Company Warrants apprising them that, subject to the holder thereof executing and delivering to the Company prior to the end of the Business Day on the date that is at least three Business Days prior to the Closing Date a Warrant Termination Agreement in the form attached hereto as Exhibit F (a “Warrant Termination Agreement”), such holder is entitled to the payments set forth in this Agreement with respect to such Company Warrant, all in accordance with and subject to the terms and conditions of this Agreement and the Warrant Termination Agreement. If a holder timely executes and delivers the Warrant Termination Agreement in accordance with this Section 1.12(a) his or her Company Warrants are “Cashed-Out Warrants” for purposes of this Agreement. Any holder that fails to timely execute and deliver a Warrant Termination Agreement forfeits such Company Warrant and such Company Warrant terminates effective as of the Closing. (b) Prior to the Closing, the Company’s board of directors shall adopt appropriate resolutions and take all other actions it determines are reasonably necessary and appropriate to cause each Cashed-Out Warrant that is outstanding immediately prior to the Effective Time to be cancelled and converted as of the Effective Time into the right to receive (subject to the terms and conditions of this Agreement and the Warrant Termination Agreement) a portion of the Aggregate Merger Consideration with respect thereto equal to the Company Warrant Payment Amount less any applicable withholding Taxes (with any such withholding Taxes to be paid in cash). As of the Effective Time, all Cashed-Out Warrants automatically cease to exist, and each holder of a Cashed-Out Warrant ceases to have any rights with respect thereto, except the right to receive the Company Warrant Payment Amount, if any, in accordance with this Agreement and the Warrant Termination Agreements.

Treatment of Company Warrants. (ai) Prior As of the Effective Time, each outstanding and unexercised Company Warrant that, pursuant to the Closing, the Company shall provide a notice to the holders terms of Company Warrants apprising them that, subject to the holder thereof executing and delivering to the Company prior to the end of the Business Day on the date that is at least three Business Days prior to the Closing Date a Warrant Termination Agreement in the form attached hereto as Exhibit F (a “Warrant Termination Agreement”), such holder is entitled to the payments set forth in this Agreement with respect to such Company Warrant, all in accordance with and subject to the terms and conditions of this Agreement and the Warrant Termination Agreement. If shall expire or terminate as a holder timely executes and delivers the Warrant Termination Agreement in accordance with this Section 1.12(a) his or her Company Warrants are “Cashed-Out Warrants” for purposes of this Agreement. Any holder that fails to timely execute and deliver a Warrant Termination Agreement forfeits such Company Warrant and such Company Warrant terminates effective as result of the Closing. Merger (beach, a “Terminated Warrant”) Prior to the Closing, the Company’s board of directors without consideration shall adopt appropriate resolutions and take all other actions it determines are reasonably necessary and appropriate to cause each Cashed-Out Warrant that is outstanding expire or terminate immediately prior to the Effective Time to be cancelled and converted as without any consideration payable therefor (whether in the form of the Effective Time into the right to receive (subject cash or otherwise) pursuant to the terms and conditions of this Agreement and the Warrant Termination Agreementsuch Terminated Warrant. (ii) a portion of the Aggregate Merger Consideration with respect thereto equal to the Company Warrant Payment Amount less any applicable withholding Taxes (with any such withholding Taxes to be paid in cash). As of the Effective Time, all Cashedeach outstanding and unexercised Company Warrant that, pursuant to the terms of such Company Warrant, requires a payment to the holder thereof and provides for deemed exercise as a result of the Merger (each, an “In-Out Warrants the-Money Warrant”) shall be cancelled and automatically cease to exist, and each holder of a Cashed-Out Warrant ceases to have any rights with respect thereto, except converted into the right to receive an amount in cash calculated pursuant to the terms of such In-the-Money Warrant. (iii) As of the Effective Time, unless otherwise agreed with the holders thereof prior to the Effective Time, each outstanding and unexercised Company Warrant that, pursuant to the terms of such Company Warrant, does not provide for expiration, termination or deemed exercise as a result of the Merger (each, an “Unexercised Warrant”) shall be converted into and thereafter evidence a warrant entitling the holder thereof to receive upon exercise an amount in cash calculated pursuant to the terms of such Unexercised Warrant. Following the Effective Time, each Unexercised Warrant shall be subject to the same terms and conditions as had applied to such Unexercised Warrant as of immediately prior to the Effective Time, except for such terms rendered inoperative by reason of the Merger or as otherwise set forth herein or in such Unexercised Warrant and subject to such adjustments as reasonably determined by Parent and the Company to be necessary or appropriate to give effect to the conversion and the Merger. (iv) All payments contemplated by this Section 2.8(f) shall be made as promptly as practicable after the Effective Time, and in any event no later than the later of the time for such payment contemplated by the applicable Company Warrant Payment Amountand the fifth Business Day following the Effective Time. Parent shall ensure that the Surviving Corporation has sufficient funds to make all such payments by the applicable times. (v) In connection with the Merger, if anythe Company shall deliver any notices required under the terms of any outstanding Company Warrants to the holders thereof, and the Company shall provide Parent and its counsel with a reasonable opportunity to review and comment on any such notice and give due consideration to any such comments made by Parent and its counsel. (vi) The Company shall use its reasonable best efforts (A) to take (or cause to be taken) all actions; (B) do (or cause to be done) all things; and (C) assist and cooperate with Parent in doing (or causing to be done) all things, in accordance with this Agreement each case as are necessary, proper or advisable to effectuate (promptly after the Closing) the termination of each Terminated Warrant, the proper exercise of each In-the-Money Warrant by the holders thereof and the Warrant Termination Agreementsassumption by Parent or termination of each Unexercised Warrant, as applicable. The Company may not deliver any materials to holders of the Company Warrants without providing Parent and its counsel with a reasonable opportunity to review and comment on any such materials, and the Company shall give due consideration to any such comments made by Parent and its counsel.

Treatment of Company Warrants. The Company shall use all reasonable efforts to assure, including if applicable obtaining written agreements or consents from the holders of Company Warrants (asuch an agreement or consent, a “Company Warrantholder Consent”), that each Company Warrant shall be either (i) Prior exercised in full in accordance with its terms at or prior to the Closing, or (ii) automatically cancelled effective as of the Effective Time in exchange for a cash payment (the “Warrant Consideration”) equal to the product of (A) the excess of (x) the Per Share Merger Consideration with respect to a share of Company Common Stock over (y) the per share exercise price of such Company Warrant and (B) the number of shares of Company Common Stock subject to such Company Warrant. At or prior to the Closing, the Company shall will provide to Parent a notice schedule setting forth the aggregate Warrant Consideration payable to each holder of a Company Warrant in accordance with this Section 5.7(b). At least five business days prior to the Closing, Parent will cause the Paying Agent to provide to the Company, for distribution to the holders of Company Warrants apprising them thatWarrants, subject to the holder thereof executing appropriate instructions and delivering to the Company prior to the end of the Business Day on the date that is at least three Business Days prior to the Closing Date a Warrant Termination Agreement in the form attached hereto as Exhibit F documentation (a “Warrant Termination Agreement”), such holder is entitled to the payments set forth in this Agreement including with respect to Tax withholding, and including provisions whereby each such Company Warrantholder irrevocably agrees to, all in accordance with and subject to be bound by, the provisions hereof relating to the terms Securityholder Representative (including without limitation the appointment of the Securityholder Representative as such holder’s representative and conditions attorney-in-fact as provided herein), the deposit with the Escrow Agent of this Agreement such holder’s Proportionate Percentage of the Escrow Amount as a part of the Purchase Price payable to such holder hereunder, the provisions of Article VII and the Warrant Termination Escrow Agreement. If a holder timely executes ) to be completed, signed and delivers the Warrant Termination Agreement in accordance with this Section 1.12(a) his or her Company Warrants are “Cashed-Out Warrants” for purposes of this Agreement. Any holder that fails to timely execute and deliver a Warrant Termination Agreement forfeits submitted by such Company Warrant and such Company Warrant terminates effective as of the Closing. (b) Prior holders to the Closing, the Company’s board of directors shall adopt appropriate resolutions and take all other actions it determines are reasonably necessary and appropriate to cause each Cashed-Out Warrant that is outstanding immediately prior to Paying Agent at or after the Effective Time in order to be cancelled and converted as receive payment of the Effective Time into Warrant Consideration. Parent will instruct and cause the right Paying Agent to receive (subject make such payment to the terms and conditions of this Agreement and the Warrant Termination Agreement) a portion of the Aggregate Merger Consideration with respect thereto equal to the Company Warrant Payment Amount less any applicable withholding Taxes (with any each such withholding Taxes to be paid in cash). As of the Effective Time, all Cashed-Out Warrants automatically cease to exist, and each holder not later than one business day after receipt from such holder of a Cashed-Out Warrant ceases to have any rights with respect thereto, except the right to receive the Company Warrant Payment Amount, if any, in accordance with this Agreement and the Warrant Termination Agreementssuch documentation.

Treatment of Company Warrants. At the Effective Time, to the extent not exercised prior to the Effective Time, each outstanding Company Warrant shall be automatically converted into a warrant to acquire such number of shares of Parent Common Stock (a “Parent Warrant”) as is determined by multiplying the number of shares of Company Common Stock otherwise acquirable pursuant thereto by the Common Stock Exchange Ratio at an exercise price per share of Parent Common Stock appropriately adjusted such that the aggregate exercise price for such Parent Warrant shall be the same as it was prior to the Effective Time. At the Effective Time, Parent shall expressly assume the due and punctual observance and performance of each and every covenant contained in, and condition of, the Company Warrants to be performed and observed by the Company and all the obligations and liabilities thereunder. (a) Prior As promptly as practicable after the Effective Time, Parent shall deliver to the Closing, the each holder of a Company shall provide Warrant a notice to that contains a calculation in reasonable detail and accurately reflects the holders number of Company Warrants apprising them that, subject to the holder thereof executing and delivering to the Company prior to the end shares of the Business Day on the date Parent Common Stock that is at least three Business Days prior to the Closing Date a Warrant Termination Agreement in the form attached hereto as Exhibit F (a “Warrant Termination Agreement”), each such holder is entitled to receive upon the payments set forth in this Agreement with respect to exercise of such Company Warrant, all in accordance with and subject to the terms and conditions of this Agreement and the Warrant Termination Agreement. If a holder timely executes and delivers the Warrant Termination Agreement in accordance with this Section 1.12(a) his or her Company Warrants are “Cashed-Out Warrants” for purposes of this Agreement. Any holder that fails to timely execute and deliver a Warrant Termination Agreement forfeits such holder’s Company Warrant and the applicable adjusted exercise price. Together with such notice, or as part of such notice, Parent shall deliver a duly executed confirmation that Parent has expressly assumed the due and punctual observance and performance of each and every covenant contained in, and condition of, the applicable Company Warrant terminates effective as of to be performed and observed by the ClosingCompany and all the obligations and liabilities thereunder. (b) Prior to the Closing, the Company’s board The number of directors shall adopt appropriate resolutions and take all other actions it determines are reasonably necessary and appropriate to cause each Cashed-Out Warrant that is outstanding immediately prior to the Effective Time to be cancelled and converted as shares of Parent Common Stock issuable upon exercise of the Effective Time into the right to receive (subject to the terms and conditions Parent Warrants shall be reserved by Parent out of this Agreement and the Warrant Termination Agreement) a portion authorized but unissued Parent Common Stock for issuance upon exercise in full of the Aggregate Merger Consideration with respect thereto equal to the Company Warrant Payment Amount less any applicable withholding Taxes (with any such withholding Taxes to be paid in cash). As of all Parent Warrants after the Effective Time. Notwithstanding the foregoing, all Cashed-Out upon the expiration of the Parent Warrants, such Parent Common Stock reserved for issuance upon the exercise of the Parent Warrants automatically cease to exist, and each holder of a Cashed-Out Warrant ceases to have any rights with respect thereto, except the right to receive the Company Warrant Payment Amount, if any, in accordance with this Agreement and the Warrant Termination Agreementsshall no longer be reserved.

Treatment of Company Warrants. (ai) Prior The Company Common Warrants shall not be assumed or continued by Parent, Midco, the Company, or the Surviving Corporation in connection with the Merger or the other transactions contemplated hereby. Immediately prior to the ClosingEffective Time, each and every Company Common Warrant for which a Warrant Cancellation Agreement has been executed and delivered to the Company, per the terms and conditions of the Company Common Warrants and the respective Warrant Cancellation Agreement, at the Effective Time shall provide a notice be cancelled and extinguished and be converted automatically into the right to the holders receive with respect to each share of Company Warrants apprising them thatCommon Stock received upon exercise of a Company Common Warrant, (i) subject to Section 2.3, (A) if the holder thereof executing is (x) an Accredited Stockholder, a number of shares of Parent Common Stock calculated in accordance with the Certificate of Incorporation of Company and delivering to the applicable Company prior to the end of the Business Day Common Warrant and as set forth on the date that is at least three Business Days prior Allocation Schedule, or (y) an Unaccredited Stockholder, the Per Share Unaccredited Cash Consideration (in each case, without interest thereon) minus the per share exercise price of such Company Common Warrant, minus (B) the Per Share Expense Fund Amount and (ii) a contingent right to any cash disbursements required to be made from the Closing Date a Warrant Termination Agreement in the form attached hereto as Exhibit F (a “Warrant Termination Agreement”), such holder is entitled to the payments set forth in this Agreement Expense Fund Account with respect to such Company WarrantCommon Warrant to such Company Warrant holder (based on such Company Warrant holder’s Pro Rata Share of the released amount), all without interest, in accordance with Section 8.9(c). Notwithstanding the foregoing, any Company Common Warrant that has an exercise price that equals or exceeds the value of the Parent Common Stock underlying such Company Common Warrant (as set forth on the Allocation Schedule) or the Per Share Unaccredited Cash Consideration, as applicable, shall be cancelled and subject to terminated without consideration at the Effective Time. Any Company Common Warrant that is not represented by a validly executed Warrant Cancellation Agreement shall be terminated per the terms and conditions of this Agreement and the Warrant Termination Agreement. If a holder timely executes and delivers the Warrant Termination Agreement in accordance with this Section 1.12(a) his or her Company Warrants are “Cashed-Out Warrants” for purposes of this Agreement. Any holder that fails to timely execute and deliver a Warrant Termination Agreement forfeits such Company Common Warrant and such Company Warrant terminates effective as of the Closing. (b) Prior to the Closing, the Company’s board of directors shall adopt appropriate resolutions and take all other actions it determines are reasonably necessary and appropriate to cause each Cashed-Out Warrant that is outstanding immediately prior to the Effective Time Time. (ii) Immediately prior to the Effective Time, each Company Preferred Warrant shall be cancelled and converted as of replaced by a Replacement Warrant, which, following the Effective Time into the right to receive (subject to and in accordance with the terms and conditions of this Agreement and the Warrant Termination Agreement) Replacement Warrant, shall represent the right to receive a portion number of shares of Parent Preferred Stock calculated in accordance with the terms of the Aggregate Merger Consideration with respect thereto equal applicable Replacement Warrant and as set forth on the Allocation Schedule (without interest thereon). (iii) Prior to the Company Warrant Payment Amount less any applicable withholding Taxes (with any such withholding Taxes to be paid in cash). As of the Effective Time, all Cashed-Out Warrants automatically cease to existthe boards of directors of Parent, Midco, Merger Sub and each holder of a Cashed-Out Warrant ceases to have any rights with respect thereto, except the right to receive the Company Warrant Payment Amount, if any, in accordance with will adopt such resolutions or take such actions as are reasonably necessary to carry out the terms of this Agreement and the Warrant Termination AgreementsSection 2.1(c).