Common use of Treatment of Warrant at Acquisition Clause in Contracts

Treatment of Warrant at Acquisition. In the event of an Acquisition in which the consideration to be received by the Company’s stockholders consists solely of cash, solely of Marketable Securities or a combination of cash and Marketable Securities (a “Cash/Public Acquisition”), and the fair market value of one Share as determined in accordance with Section 1.3 above (assuming for such purposes that this Warrant and the Notice of Exercise were delivered to the Company on the date of the closing of such Cash/Public Acquisition) would be greater than the an amount equal to lesser of (i) the Warrant Price and (ii) the Black-Scholes Adjusted Warrant Price (as defined below), in each case in effect on such date immediately prior to such Cash/Public Acquisition, and Holder has not exercised this Warrant pursuant to Section 1.1 above as to all Shares, then this Warrant shall automatically be deemed to be a cashless exercise pursuant to Section 1.2 above as to all Shares effective immediately prior to and contingent upon the consummation of a Cash/Public Acquisition, with such number of shares of Class A Common Stock which would have been so issuable to be determined by (i) subtracting B from A, (ii) dividing the result by A, and (iii) multiplying the quotient by C as set forth in the following equation: X=A-B×CA where: X = the number of shares of Class A Common Stock issuable upon exercise pursuant to this Section 1.6(b). A = the amount of Sale Consideration payable per share of Class A Common Stock of the Acquisition, (i) with such amount expressed in U.S. dollars and, if applicable, rounded to the nearest whole cent, and (ii) with any non-cash portion of such Sale Consideration valued at the value attributed thereto in the Acquisition. B = the lesser of (i) the Warrant Price and (ii) the Black-Scholes Adjusted Warrant Price. C = the number of shares of Class A Common Stock as to which this Warrant is exercisable after giving effect to Section 5.1(a)(2) (prior to payment of the Warrant Price). In connection with such Cashless Exercise, Holder shall be deemed to have restated each of the representations and warranties in Section 4 of the Warrant as of the date thereof and the Company shall promptly notify the Holder of the number of Shares (or such other securities) issued upon exercise. In the event of a Cash/Public Acquisition where the fair market value of one Share as determined in accordance with the Section 1.3 above would be less than the Warrant Price in effect immediately prior to such Cash/Public Acquisition, then this Warrant will expire immediately prior to the consummation of such Cash/Public Acquisition.

Treatment of Warrant at Acquisition. In Upon the event closing of an any Acquisition, at Holder’s option: (i) if the surviving entity (if applicable in such Acquisition) is willing assume the obligations of the Company under this Warrant, then if Holder so elects this Warrant shall be convertible into the same securities as would be payable for the Warrant Stock issuable upon conversion of the unconverted portion of this Warrant as if such Warrant Stock were outstanding on the record date for the Acquisition in which the consideration to be received by the Company’s stockholders consists solely of cash, solely of Marketable Securities or a combination of cash and Marketable Securities (a “Cash/Public Acquisition”), and the fair market value Warrant Price and/or number of one Share as determined in accordance with shares of Warrant Stock shall be adjusted accordingly); or (ii) Holder may exercise its rights under Section 1.3 above (assuming for such purposes that this 1.7 and put the Warrant and the Notice of Exercise were delivered to the Company on (or the surviving entity as a condition to the Acquisition) for cash; or (iii) the Company or other surviving entity in such Acquisition shall, upon initial closing of such Acquisition purchase this Warrant at its “Fair Value” (the “Purchase Price”). For purposes hereof, “Fair Value” means that value determined by the parties using a Black-Scholes Option-Pricing Model (the “ Black-Scholes Calculation”) with the following assumptions: (A) a risk-free interest rate equal to the risk-free interest rate at the time of the closing of the Acquisition (or as close thereto as practicable), (B) a contractual life of the Warrant equal to the remaining term of this Warrant as of the date of the closing of such Cash/Public Acquisition) would be greater than the an amount equal to lesser of (i) the Warrant Price and (ii) the Black-Scholes Adjusted Warrant Price (as defined below), in each case in effect on such date immediately prior to such Cash/Public Acquisition, and Holder has not exercised this Warrant pursuant to Section 1.1 above as to all Shares, then this Warrant shall automatically be deemed to be a cashless exercise pursuant to Section 1.2 above as to all Shares effective immediately prior to and contingent upon the consummation of a Cash/Public Acquisition, with such number of shares of Class A Common Stock which would have been so issuable to be determined by (i) subtracting B from A, (ii) dividing the result by A, and (iii) multiplying the quotient by C as set forth in the following equation: X=A-B×CA where: X = the number of shares of Class A Common Stock issuable upon exercise pursuant to this Section 1.6(b). A = the amount of Sale Consideration payable per share of Class A Common Stock announcement of the Acquisition, (iC) with such amount expressed in U.S. dollars and, if applicable, rounded an annual dividend yield equal to dividends declared on the nearest whole centunderlying Warrant Stock (including securities into which the Warrant Stock may be convertible) during the term of this Warrant (calculated on an annual basis), and (iiD) with any a volatility factor of the expected market price of the Company’s Common Stock comprised of: (1) if the Company is publicly traded on a national securities exchange, its volatility over the one year period ending on the day prior to the announcement of the Acquisition, (2) if the Common Stock is traded over-the-counter, its volatility over the one year period ending on the day prior to the announcement of the Acquisition, or (3) if the Company is a non-cash portion public company, the volatility, over the one year period prior to the Acquisition, of such Sale Consideration valued at the value attributed thereto an average of publicly-traded companies in the Acquisition. B = same or similar industry to the lesser of (i) the Warrant Price and (ii) the Black-Scholes Adjusted Warrant Price. C = the number of shares of Class A Common Stock as to which this Warrant is exercisable after giving effect to Section 5.1(a)(2) (prior to payment of the Warrant Price). In connection Company with such Cashless Exercise, Holder shall be deemed to have restated each of the representations and warranties in Section 4 of the Warrant as of the date thereof and the Company shall promptly notify the Holder of the number of Shares (or such other securities) issued upon exercisecompanies having similar revenues. In the event of a Cash/Public Acquisition where the fair market value of one Share as The Purchase Price determined in accordance with the Section 1.3 above shall be paid upon the initial closing of the Acquisition and shall not be subject to any post-Acquisition closing contingencies or adjustments; provided, however, the parties may take such post-Acquisition closing contingencies or adjustments into account in determining the Purchase Price, and if the parties take any post-Acquisition closing contingencies or adjustments into account, then upon the partial or complete removal of those post-Acquisition closing contingencies or adjustments, a new Black-Scholes Calculation would be less than made using all of the Warrant Price same inputs except for the value of the Company’s Common Stock (as determined under subclause (D)), and any increase in effect Fair Value (and, correspondingly, Purchase Price), including, without limitation, as a result of any earn-out or escrowed consideration, would be paid in full to Holder immediately prior to such Cash/Public Acquisition, then this Warrant will expire immediately prior to the consummation of such Cash/Public Acquisitionafter those post-Acquisition closing contingencies or adjustments can be determined or achieved.

Treatment of Warrant at Acquisition. In Upon the event closing of an any Acquisition, at Holder’s option: (i) if the surviving entity (if applicable in such Acquisition) is willing assume the obligations of the Company under this Warrant, then if Holder so elects this Warrant shall be convertible into the same securities as would be payable for the Warrant Stock issuable upon conversion of the unconverted portion of this Warrant as if such Warrant Stock were outstanding on the record date for the Acquisition (and the Warrant Price and/or number of shares of Warrant Stock shall be adjusted accordingly); or (ii) the Company or other surviving entity in which such Acquisition may (in lieu of assuming this Warrant under clause (i)) upon initial closing of such Acquisition purchase this Warrant at its “Fair Value” (the consideration to be received “Purchase Price”). For purposes hereof, “Fair Value” means that value determined by the Company’s stockholders consists solely parties using a Black-Scholes Option-Pricing Model (the “ Black-Scholes Calculation”) with the following assumptions: (A) a risk-free interest rate equal to the risk-free interest rate at the time of cash, solely the closing of Marketable Securities the Acquisition (or a combination of cash and Marketable Securities (a “Cash/Public Acquisition”as close thereto as practicable), and (B) a contractual life of the fair market value Warrant equal to the remaining term of one Share as determined in accordance with Section 1.3 above (assuming for such purposes that this Warrant and the Notice as of Exercise were delivered to the Company on the date of the closing of such Cash/Public Acquisition) would be greater than the an amount equal to lesser of (i) the Warrant Price and (ii) the Black-Scholes Adjusted Warrant Price (as defined below), in each case in effect on such date immediately prior to such Cash/Public Acquisition, and Holder has not exercised this Warrant pursuant to Section 1.1 above as to all Shares, then this Warrant shall automatically be deemed to be a cashless exercise pursuant to Section 1.2 above as to all Shares effective immediately prior to and contingent upon the consummation of a Cash/Public Acquisition, with such number of shares of Class A Common Stock which would have been so issuable to be determined by (i) subtracting B from A, (ii) dividing the result by A, and (iii) multiplying the quotient by C as set forth in the following equation: X=A-B×CA where: X = the number of shares of Class A Common Stock issuable upon exercise pursuant to this Section 1.6(b). A = the amount of Sale Consideration payable per share of Class A Common Stock announcement of the Acquisition, (iC) with such amount expressed in U.S. dollars and, if applicable, rounded an annual dividend yield equal to dividends declared on the nearest whole centunderlying Warrant Stock (including securities into which the Warrant Stock may be convertible) during the term of this Warrant (calculated on an annual basis), and (iiD) with any a volatility factor of the expected market price of the Company’s Common Stock comprised of: (1) if the Company is publicly traded on a national securities exchange, its volatility over the one year period ending on the day prior to the announcement of the Acquisition, (2) if the Common Stock is traded over-the-counter, its volatility over the one year period ending on the day prior to the announcement of the Acquisition, or (3) if the Company is a non-cash portion public company, the volatility, over the one year period prior to the Acquisition, of such Sale Consideration valued at the value attributed thereto an average of publicly-traded companies in the Acquisition. B = same or similar industry to the lesser of (i) the Warrant Price and (ii) the Black-Scholes Adjusted Warrant Price. C = the number of shares of Class A Common Stock as to which this Warrant is exercisable after giving effect to Section 5.1(a)(2) (prior to payment of the Warrant Price). In connection Company with such Cashless Exercise, Holder shall be deemed to have restated each of the representations and warranties in Section 4 of the Warrant as of the date thereof and the Company shall promptly notify the Holder of the number of Shares (or such other securities) issued upon exercisecompanies having similar revenues. In the event of a Cash/Public Acquisition where the fair market value of one Share as The Purchase Price determined in accordance with the Section 1.3 above shall be paid upon the initial closing of the Acquisition and shall not be subject to any post-Acquisition closing contingencies or adjustments; provided, however, the parties may take such post-Acquisition closing contingencies or adjustments into account in determining the Purchase Price, and if the parties take any post-Acquisition closing contingencies or adjustments into account, then upon the partial or complete removal of those post-Acquisition closing contingencies or adjustments, a new Black-Scholes Calculation would be less than made using all of the Warrant Price same inputs except for the value of the Company’s Common Stock (as determined under subclause (D)), and any increase in effect Fair Value (and, correspondingly, Purchase Price), including, without limitation, as a result of any earn-out or escrowed consideration, would be paid in full to Holder immediately prior to such Cash/Public Acquisition, then this Warrant will expire immediately prior to the consummation of such Cash/Public Acquisitionafter those post-Acquisition closing contingencies or adjustments can be determined or achieved.

Treatment of Warrant at Acquisition. In the event of an Acquisition in which the consideration to be received by the Company’s stockholders consists solely of cash, solely of Marketable Securities or a combination of cash and Marketable Securities (a “Cash/Public Acquisition”), and the fair market value of one Share as determined in accordance with Section 1.3 above (assuming for such purposes that this Warrant and the Notice of Exercise were delivered to the Company on the date of the closing of such Cash/Public Acquisition) would be greater than the an amount equal to lesser of (i) the Warrant Price and (ii) the Black-Scholes Adjusted Warrant Price (as defined below), in each case in effect on such date immediately prior to such Cash/Public Acquisition, and Holder has not exercised this Warrant pursuant to Section 1.1 1. 1 above as to all Shares, then this Warrant shall automatically be deemed to be a cashless exercise Cashless Exercised pursuant to Section 1.2 above as to all Shares effective immediately prior to and contingent upon the consummation of a Cash/Public Acquisition, with such number of shares of Class A Common Stock which would have been so issuable to be determined by (i) subtracting B from A, (ii) dividing the result by A, and (iii) multiplying the quotient by C as set forth in the following equation: X=A-B×CA where: X = the number of shares of Class A Common Stock issuable upon exercise pursuant to this Section 1.6(b). A = the amount of Sale Consideration payable per share of Class A Common Stock of the Acquisition, (i) with such amount expressed in U.S. dollars and, if applicable, rounded to the nearest whole cent, and (ii) with any non-cash portion of such Sale Consideration valued at the value attributed thereto in the Acquisition. B = the lesser of (i) the Warrant Price and (ii) the Black-Scholes Adjusted Warrant Price. C = the number of shares of Class A Common Stock as to which this Warrant is exercisable after giving effect to Section 5.1(a)(2) (prior to payment of the Warrant Price). In connection with such Cashless Exercise, Holder shall be deemed to have restated each of the representations and warranties in Section 4 of the Warrant as of the date thereof and the Company shall promptly notify the Holder of the number of Shares (or such other securities) issued upon exercise. In the event of a Cash/Public Acquisition where the fair market value of one Share as determined in accordance with the Section 1.3 above would be less than the Warrant Price in effect immediately prior to such Cash/Public Acquisition, then this Warrant will expire immediately prior to the consummation of such Cash/Public Acquisition. Notwithstanding the foregoing provisions of this Section l.6(b), in the event of a Cash/Public Acquisition (i) involving the payment or possible payment following the initial closing thereof of deferred or contingent consideration to the holders of the outstanding shares of the Class (whether of amounts deposited at such closing into an escrow, contingent payments in the nature of milestone or earn-out payments, or otherwise), and (ii) where the maximum aggregate amount per outstanding share of the Class of all payments to be made at the initial closing thereof plus all payments and possible payments of deferred and contingent consideration thereafter would be greater than the Warrant Price in effect as of immediately prior to such initial closing, then this Warrant shall, as of such initial closing, cease to represent the right to purchase Shares or any other securities, whether of the Company or of the acquiring, surviving or successor entity in such Cash/Public Acquisition, and thereat and thereafter shall represent only the right to receive all payments that would be payable in respect of all Shares for which this Warrant was exercisable as of immediately prior to such initial closing, net of the aggregate Warrant Price therefor, as and when payments are made to the holders of the outstanding shares of the Class.

Treatment of Warrant at Acquisition. In the event of an Acquisition in which which[, Holder does not elect to exercise the Repurchase Option, and] the consideration to be received by the Company’s stockholders consists solely of cash, solely of Marketable Securities or a combination of cash and Marketable Securities (a “Cash/Public Acquisition”), and the fair market value of one Share as determined in accordance with Section 1.3 above (assuming for such purposes that this Warrant and the Notice of Exercise were delivered to the Company on the date of the closing of such Cash/Public Acquisition) would be greater than the an amount equal to lesser of (i) the Warrant Price and (ii) the Black-Scholes Adjusted Warrant Price (as defined below), in each case in effect on such date immediately prior to such Cash/Public Acquisition, and Holder has not exercised this Warrant pursuant to Section 1.1 above as to all Shares, then this Warrant shall automatically be deemed to be a cashless exercise Cashless Exercised pursuant to Section 1.2 above as to all Shares effective immediately prior to and contingent upon the consummation of a Cash/Public Acquisition, with such number of shares of Class A Common Stock which would have been so issuable to be determined by (i) subtracting B from A, (ii) dividing the result by A, and (iii) multiplying the quotient by C as set forth in the following equation: X=A-B×CA where: X = the number of shares of Class A Common Stock issuable upon exercise pursuant to this Section 1.6(b). A = the amount of Sale Consideration payable per share of Class A Common Stock of the Acquisition, (i) with such amount expressed in U.S. dollars and, if applicable, rounded to the nearest whole cent, and (ii) with any non-cash portion of such Sale Consideration valued at the value attributed thereto in the Acquisition. B = the lesser of (i) the Warrant Price and (ii) the Black-Scholes Adjusted Warrant Price. C = the number of shares of Class A Common Stock as to which this Warrant is exercisable after giving effect to Section 5.1(a)(2) (prior to payment of the Warrant Price). In connection with such Cashless Exercise, Holder shall be deemed to have restated each of the representations and warranties in Section 4 of the Warrant as of the date thereof and the Company shall promptly notify the Holder of the number of Shares (or such other securities) issued upon exercise. In the event of a Cash/Public Acquisition where the fair market value of one Share as determined in accordance with the Section 1.3 above would be less than the Warrant Price in effect immediately prior to such Cash/Public Acquisition, then this Warrant will expire immediately prior to the consummation of such Cash/Public Acquisition. [(c)][(d)] [If Holder elects not to exercise the Repurchase Option, upon] the closing of any Acquisition other than a Cash/Public Acquisition defined above, the acquiring, surviving or successor entity shall assume the obligations of this Warrant, and this Warrant shall thereafter be exercisable for the same securities and/or other property as would have been paid for the Shares issuable upon exercise of the unexercised portion of this Warrant as if such Shares were outstanding on and as of the closing of such Acquisition, subject to further adjustment from time to time in accordance with the provisions of this Warrant.

Treatment of Warrant at Acquisition. In Upon the written request of the Company, Holder agrees that, in the event of an Acquisition that is not an asset sale and in which the consideration to be received by the Company’s stockholders consists solely of is cash, solely of Marketable Securities Securities, or a combination of cash and Marketable Securities thereof, either (a “Cash/Public Acquisition”), and the fair market value of one Share as determined in accordance with Section 1.3 above (assuming for such purposes that a) Holder shall exercise its conversion or purchase right under this Warrant and the Notice of Exercise were delivered to the Company on the date of the closing of such Cash/Public Acquisition) would be greater than the an amount equal to lesser of (i) the Warrant Price and (ii) the Black-Scholes Adjusted Warrant Price (as defined below), in each case in effect on such date immediately prior to such Cash/Public Acquisition, and Holder has not exercised this Warrant pursuant to Section 1.1 above as to all Shares, then this Warrant shall automatically exercise will be deemed to be a cashless exercise pursuant to Section 1.2 above as to all Shares effective immediately prior to and contingent upon the consummation of a Cash/Public Acquisition, with such number of shares of Class A Common Stock which would have been so issuable to be determined by (i) subtracting B from A, (ii) dividing the result by A, and (iii) multiplying the quotient by C as set forth in the following equation: X=A-B×CA where: X = the number of shares of Class A Common Stock issuable upon exercise pursuant to this Section 1.6(b). A = the amount of Sale Consideration payable per share of Class A Common Stock of the Acquisition, (i) with such amount expressed in U.S. dollars and, if applicable, rounded to the nearest whole cent, and (ii) with any non-cash portion of such Sale Consideration valued at the value attributed thereto in the Acquisition. B = the lesser of (i) the Warrant Price and (ii) the Black-Scholes Adjusted Warrant Price. C = the number of shares of Class A Common Stock as to which this Warrant is exercisable after giving effect to Section 5.1(a)(2) (prior to payment of the Warrant Price). In connection with such Cashless Exercise, Holder shall be deemed to have restated each of the representations and warranties in Section 4 of the Warrant as of the date thereof and the Company shall promptly notify the Holder of the number of Shares (or such other securities) issued upon exercise. In the event of a Cash/Public Acquisition where the fair market value of one Share as determined in accordance with the Section 1.3 above would be less than the Warrant Price in effect immediately prior to such Cash/Public Acquisition, then this Warrant will expire immediately prior to the consummation of such Cash/Public Acquisition or (b) if Holder elects not to exercise the Warrant, this Warrant will expire upon the consummation of such Acquisition. The Company shall provide the Holder with written notice of its request relating to the foregoing (together with such reasonable information as the Holder may request in connection with such contemplated Acquisition giving rise to such notice), which is to be delivered to Holder not less than ten (10) days prior to the closing of the proposed Acquisition. Upon the written request of the Company, Holder agrees that, in the event of an Acquisition that is an “arms length” sale of all or substantially all of the Company’s assets (and only its assets) to a third party that is not an Affiliate (as defined below) of the Company (a “True Asset Sale”), either (a) Holder shall exercise its conversion or purchase right under this Warrant and such exercise will be deemed effective immediately prior to the consummation of such Acquisition or (b) if Holder elects not to exercise the Warrant, this Warrant will continue until the Expiration Date if the Company continues as a going concern following the closing of any such True Asset Sale. The Company shall provide the Holder with written notice of its request relating to the foregoing (together with such reasonable information as the Holder may request in connection with such contemplated Acquisition giving rise to such notice), which is to be delivered to Holder not less than ten (10) days prior to the closing of the proposed Acquisition. Upon the closing of any Acquisition other than those particularly described in subsections (A) and (B) above, the successor entity shall assume this Warrant, and shall succeed to, and be substituted for (so that from and after the date of such Acquisition, the provisions of this Warrant referring to the “Company” shall refer instead to the successor entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such successor entity had been named as the Company herein. Upon the closing of the Acquisition, this Warrant shall be exercisable for, in lieu of the Shares, the same securities, cash, and property as would be payable for the Shares issuable upon exercise of the unexercised portion of this Warrant as if such Shares were outstanding on the record date of such Acquisition and subsequent closing. The Warrant Price and/or number and type of securities subject to this Warrant following such Acquisition shall be adjusted accordingly (as determined in good faith by the Board of Directors of the Company).