Warrant Price; Adjustments. Subject and pursuant to the provisions of this Section 8, the Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, as set forth hereinafter. (a) On each date this Warrant is exercised pursuant to the terms hereof, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”). (b) If the Company shall, at any time or from time to time while this Warrant is outstanding, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever any event listed above shall occur. (c) If any (i) capital reorganization or reclassification of the share capital of the Company, (ii) consolidation, amalgamation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), shall be effected, then, as a condition of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions herein specified and in lieu of the Warrant Shares immediately theretofore issuable upon exercise of the Warrant, the highest amount of such shares, securities or assets as would have been issuable or payable with respect to or in exchange for a number of Warrant Shares equal to the number of Warrant Shares immediately theretofore issuable upon exercise of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing on the books of the Company, shares, securities or assets as, in accordance with the foregoing provisions, the Warrantholder may be entitled to purchase, and the other obligations under this Warrant. The provisions of this paragraph (c) shall similarly
Appears in 4 contracts
Samples: Warrant Agreement (Watford Holdings Ltd.), Warrant Agreement (Watford Holdings Ltd.), Warrant Agreement (Watford Holdings Ltd.)
Warrant Price; Adjustments. Subject and pursuant to (a) The warrant price at which Common Stock shall be purchasable upon the provisions exercise of the Warrants shall be $5.50 per share or after adjustment, as provided in this Section 8Section, shall be such price as so adjusted (the "Warrant Price").
(b) The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to timetime as follows:
(i) In case the Company shall at any time after the date hereof pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, as set forth hereinafterthen upon such dividend or distribution the Warrant Price in effect immediately prior to such dividend or distribution shall forthwith be reduced to a price determined by dividing:
(A) an amount equal to the total number of shares of Common Stock outstanding immediately prior to such dividend or distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by
(B) the total number of shares of Common Stock outstanding immediately after such issuance or sale. For the purposes of any computation to be made in accordance with the provisions of this Section 9(b)(i), the following provisions shall be applicable: Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution.
(aii) On each date this Warrant is exercised pursuant to In case the terms hereofCompany shall at any time subdivide or combine the outstanding Common Stock, the Warrant Price per shall forthwith be proportionately decreased in the case of subdivision or increased in the case of combination to the nearest one cent. Any such adjustment shall become effective at the time such subdivision or combination shall become effective.
(iii) Within a reasonable time after the close of each quarterly fiscal period of the Company during which the Warrant Share Price has been adjusted as herein provided, the Company shall:
(A) file with the Warrant Agent a certificate signed by the Chief Executive Officer, President or Vice President of the Company and by the Treasurer or Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, showing in detail the facts requiring all such adjustments occurring during such period and the Warrant Price after each such adjustment; and
(B) the Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours, and the Warrant Agent may conclusively rely upon the latest certificate furnished to it hereunder. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making any such adjustment, or with respect to the nature or extent of the property or securities deliverable hereunder. In the absence of a certificate having been furnished, the Warrant Agent may conclusively rely upon the provisions of the Warrants with respect to the Common Stock deliverable upon the exercise of the Warrants and the applicable Warrant Price thereof.
(iv) Notwithstanding anything contained herein to the contrary, no adjustment of the Warrant Price shall be determined as set forth made if the amount of such adjustment shall be less than $.05, but in Exhibit A such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to not less than $.02.
(as v) In the event that the number of outstanding shares of Common Stock is increased by a stock dividend payable in Common Stock or by a subdivision of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to Subsection (b) of this Section by reason of such dollar amount per share may dividend or subdivision, the number of shares of Common Stock issuable upon the exercise of each Warrant shall be increased in proportion to such increase in outstanding shares. In the event that the number of shares of Common Stock outstanding is decreased by a combination of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to this Section 89(b) by reason of such combination, the “number of shares of Common Stock issuable upon the exercise of each Warrant Price”)shall be decreased in proportion to such decrease in the outstanding shares of Common Stock.
(bvi) If In case of any reorganization or reclassification of the outstanding Common Stock (other than a change in par value, or from par value to no par value, or as a result of a subdivision or combination), or in case of any consolidation of the Company shallwith, at any time or from time to time while this Warrant is outstandingmerger of the Company into, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital another corporation (including any such reclassification in connection with other than a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but corporation and which does not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever result in any event listed above shall occur.
(c) If any (i) capital reorganization or reclassification of the share capital of the Company, (ii) consolidation, amalgamation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”Stock), shall be effectedor in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, then, as a condition the holder of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder Warrant then outstanding shall thereafter have the right to purchase the kind and receive amount of shares of Common Stock and other securities and property receivable upon the basis and upon the terms and conditions herein specified and in lieu such reorganization, reclassification, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock which the holder of such Warrant Shares immediately theretofore issuable shall then be entitled to purchase; such adjustments shall apply with respect to all such changes occurring between the date of this Warrant Agreement and the date of exercise of such Warrant.
(vii) Subject to the provisions of this Section 9, in case the Company shall, at any time prior to the exercise of the Warrants, make any distribution of its assets to holders of its Common Stock as a liquidating or a partial liquidating dividend, then the holder of Warrants who exercises its Warrants after the record date for the determination of those holders of Common Stock entitled to such distribution of assets as a liquidating or partial liquidating dividend shall be entitled to receive for the Warrant Price per Warrant, in addition to each share of Common Stock, the amount of such distribution (or, at the option of the Company, a sum equal to the value of any such assets at the time of such distribution as determined by the Board of Directors of the Company in good faith), which would have been payable to such holder had he been the holder of record of the Common Stock receivable upon exercise of its Warrant on the Warrantrecord date for the determination of those entitled to such distribution.
(viii) In case of the dissolution, liquidation or winding up of the highest amount Company, all rights under the Warrants shall terminate on a date fixed by the Company, such date to be no earlier than ten (10) days prior to the effectiveness of such sharesdissolution, securities liquidation or assets as would have been issuable or payable with respect winding up and not later than five (5) days prior to or in exchange for a number such effectiveness. Notice of Warrant Shares equal such termination of purchase rights shall be given to the number of Warrant Shares immediately theretofore issuable upon exercise last registered holder of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) shall thereafter be applicableWarrants, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company same shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing appear on the books of the Company maintained by the Warrant Agent, by registered mail at least thirty (30) days prior to such termination date.
(ix) In case the Company shall, at any time prior to the expiration of the Warrants and prior to the exercise thereof, offer to the holders of its Common Stock any rights to subscribe for additional shares of any class of the Company, shares, securities then the Company shall give written notice thereof to the last registered holder thereof not less than thirty (30) days prior to the date on which the books of the Company are closed or assets as, in accordance with a record date is fixed for the foregoing provisions, determination of the Warrantholder may be stockholders entitled to purchase, such subscription rights. Such notice shall specify the date as to which the books shall be closed or record date fixed with respect to such offer of subscription and the other obligations under this Warrant. The right of the holder thereof to participate in such offer of subscription shall terminate if the Warrant shall not be exercised on or before the date of such closing of the books or such record date.
(x) Any adjustment pursuant to the aforesaid provisions of this paragraph Section 9 shall be made on the basis of the number of shares of Common Stock which the holder thereof would have been entitled to acquire by the exercise of the Warrant immediately prior to the event giving rise to such adjustment.
(cxi) Irrespective of any adjustments in the Warrant Price or the number or kind of shares purchasable upon exercise of the Warrants, Warrants previously or thereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Warrants initially issuable pursuant to this Warrant Agreement.
(xii) The Company may retain a firm of independent public accountants (who may be any such firm regularly employed by the Company) to make any computation required under this Section 9, and any certificate setting forth such computation signed by such firm shall similarlybe conclusive evidence of the correctness of any computation made under this Section 9.
(xiii) If at any time, as a result of an adjustment made pursuant to Section 9(b)(vi) above, the holders of a Warrant or Warrants shall become entitled to purchase any securities other than shares of Common Stock, thereafter the number of such securities so purchasable upon exercise of each Warrant and the Warrant Price for such shares shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in Sections 9(b)(ii) through (v).
Appears in 2 contracts
Samples: Warrant Agreement (Recovery Network Inc), Warrant Agreement (On Stage Entertainment Inc)
Warrant Price; Adjustments. Subject and pursuant to (a) The warrant price at which Common Stock shall be purchasable upon the provisions exercise of the Warrants shall be $ per share or after adjustment, as provided in this Section 8Section, shall be such price as so adjusted (the "Warrant Price").
(b) The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to timetime as follows:
(i) In case the Company shall at any time after the date hereof pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, as set forth hereinafterthen upon such dividend or distribution the Warrant Price in effect immediately prior to such dividend or distribution shall forthwith be reduced to a price determined by dividing:
(A) an amount equal to the total number of shares of Common Stock outstanding immediately prior to such dividend or distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by
(B) the total number of shares of Common Stock outstanding immediately after such issuance or sale. For the purposes of any computation to be made in accordance with the provisions of this Section 9(b)(i), the following provisions shall be applicable: Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution.
(aii) On each date this Warrant is exercised pursuant to In case the terms hereofCompany shall at any time subdivide or combine the outstanding Common Stock, the Warrant Price per shall forthwith be proportionately decreased in the case of subdivision or increased in the case of combination to the nearest one cent. Any such adjustment shall become effective at the time such subdivision or combination shall become effective.
(iii) Within a reasonable time after the close of each quarterly fiscal period of the Company during which the Warrant Share Price has been adjusted as herein provided, the Company shall
(A) file with the Warrant Agent a certificate signed by the President or Vice President of the Company and by the Treasurer or Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, showing in detail the facts requiring all such adjustments occurring during such period and the Warrant Price after each such adjustment; and
(B) the Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours, and the Warrant Agent may conclusively rely upon the latest certificate furnished to it hereunder. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making any such adjustment, or with respect to the nature or extent of the property or securities deliverable hereunder. In the absence of a certificate having been furnished, the Warrant Agent may conclusively rely upon the provisions of the Warrants with respect to the Common Stock deliverable upon the exercise of the Warrants and the applicable Warrant Price thereof.
(iv) Notwithstanding anything contained herein to the contrary, no adjustment of the Warrant Price shall be determined as set forth made if the amount of such adjustment shall be less than $.05, but in Exhibit A such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to not less than $.05.
(as v) In the event that the number of outstanding shares of Common Stock is increased by a stock dividend payable in Common Stock or by a subdivision of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to Subsection (b) of this Section by reason of such dollar amount per share may dividend or subdivision, the number of shares of Common Stock issuable upon the exercise of each Warrant shall be increased in proportion to such increase in outstanding shares. In the event that the number of shares of Common Stock outstanding is decreased by a combination of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to this Section 89(b)(b) of this Section by reason of such combination, the “number of shares of Common Stock issuable upon the exercise of each Warrant Price”)shall be decreased in proportion to such decrease in the outstanding shares of Common Stock.
(bvi) If In case of any reorganization or reclassification of the outstanding Common Stock (other than a change in par value, or from par value to no par value, or as a result of a subdivision or combination), or in case of any consolidation of the Company shallwith, at any time or from time to time while this Warrant is outstandingmerger of the Company into, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital another corporation (including any such reclassification in connection with other than a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but corporation and which does not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever result in any event listed above shall occur.
(c) If any (i) capital reorganization or reclassification of the share capital of the Company, (ii) consolidation, amalgamation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”Stock), shall be effectedor in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, then, as a condition the holder of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder Warrant then outstanding shall thereafter have the right to purchase the kind and receive amount of shares of Common Stock and other securities and property receivable upon the basis and upon the terms and conditions herein specified and in lieu such reorganization, reclassification, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock which the holder of such Warrant Shares immediately theretofore issuable shall then be entitled to purchase; such adjustments shall apply with respect to all such changes occurring between the date of this Warrant Agreement and the date of exercise of such Warrant.
(vii) Subject to the provisions of this Section 9, in case the Company shall, at any time prior to the exercise of the Warrants, make any distribution of its assets to holders of its Common Stock as a liquidating or a partial liquidating dividend, then the holder of Warrants who exercises its Warrants after the record date for the determination of those holders of Common Stock entitled to such distribution of assets as a liquidating or partial liquidating dividend shall be entitled to receive for the Warrant Price per Warrant, in addition to each share of Common Stock, the amount of such distribution (or, at the option of the Company, a sum equal to the value of any such assets at the time of such distribution as determined by the Board of Directors of the Company in good faith), which would have been payable to such holder had he been the holder of record of the Common Stock receivable upon exercise of its Warrant on the Warrantrecord date for the determination of those entitled to such distribution.
(viii) In case of the dissolution, liquidation or winding up of the highest amount Company, all rights under the Warrants shall terminate on a date fixed by the Company, such date to be no earlier than ten (10) days prior to the effectiveness of such sharesdissolution, securities liquidation or assets as would have been issuable or payable with respect winding up and not later than five (5) days prior to or in exchange for a number such effectiveness. Notice of Warrant Shares equal such termination of purchase rights shall be given to the number of Warrant Shares immediately theretofore issuable upon exercise last registered holder of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) shall thereafter be applicableWarrants, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company same shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing appear on the books of the Company maintained by the Warrant Agent, by registered mail at least thirty (30) days prior to such termination date.
(ix) In case the Company shall, at any time prior to the expiration of the Warrants and prior to the exercise thereof, offer to the holders of its Common Stock any rights to subscribe for additional shares of any class of the Company, shares, securities then the Company shall give written notice thereof to the last registered holder thereof not less than thirty (30) days prior to the date on which the books of the Company are closed or assets as, in accordance with a record date is fixed for the foregoing provisions, determination of the Warrantholder may be stockholders entitled to purchase, such subscription rights. Such notice shall specify the date as to which the books shall be closed or record date fixed with respect to such offer of subscription and the other obligations under this Warrant. The right of the holder thereof to participate in such offer of subscription shall terminate if the Warrant shall not be exercised on or before the date of such closing of the books or such record date.
(x) Any adjustment pursuant to the aforesaid provisions of this paragraph Section 9 shall be made on the basis of the number of shares of Common Stock which the holder thereof would have been entitled to acquire by the exercise of the Warrant immediately prior to the event giving rise to such adjustment.
(cxi) Irrespective of any adjustments in the Warrant Price or the number or kind of shares purchasable upon exercise of the Warrants, Warrants previously or thereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Warrants initially issuable pursuant to this Warrant Agreement.
(xii) The Company may retain a firm of independent public accountants (who may be any such firm regularly employed by the Company) to make any computation required under this Section 9, and any certificate setting forth such computation signed by such firm shall similarlybe conclusive evidence of the correctness of any computation made under this Section 9.
(xiii) If at any time, as a result of an adjustment made pursuant to Section 9(b)(vi) above, the holders of a Warrant or Warrants shall become entitled to purchase any securities other than shares of Common Stock, thereafter the number of such securities so purchasable upon exercise of each Warrant and the Warrant Price for such shares shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in Section 9(b)(ii) through (v).
Appears in 2 contracts
Samples: Warrant Agreement (Tuscany Inc), Warrant Agreement (Tuscany Inc)
Warrant Price; Adjustments. Subject and pursuant to (a) The warrant price at which Common Stock shall be purchasable upon the provisions exercise of the Warrants shall be $5.00 per share or after adjustment, as provided in this Section 8Section, shall be such price as so adjusted (the "Warrant Price").
(b) The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to timetime as follows:
(i) In case the Company shall at any time after the date hereof pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, as set forth hereinafterthen upon such dividend or distribution the Warrant Price in effect immediately prior to such dividend or distribution shall forthwith be reduced to a price determined by dividing:
(A) an amount equal to the total number of shares of Common Stock outstanding immediately prior to such dividend or distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by
(B) the total number of shares of Common Stock outstanding immediately after such dividend or distribution. For the purposes of any computation to be made in accordance with the provisions of this Section 9(b)(i), the following provisions shall be applicable: Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution.
(aii) On each date this Warrant is exercised pursuant to In case the terms hereofCompany shall at any time subdivide or combine the outstanding Common Stock, the Warrant Price per shall forthwith be proportionately decreased in the case of subdivision or increased in the case of combination to the nearest one cent. Any such adjustment shall become effective at the time such subdivision or combination shall become effective.
(iii) Within a reasonable time after the close of each quarterly fiscal period of the Company during which the Warrant Share Price has been adjusted as herein provided, the Company shall
(A) file with the Warrant Agent a certificate signed by the President or Vice President of the Company and by the Treasurer or Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, showing in detail the facts requiring all such adjustments occurring during such period and the Warrant Price after each such adjustment; and
(B) the Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours, and the Warrant Agent may conclusively rely upon the latest certificate furnished to it hereunder. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making any such adjustment, or with respect to the nature or extent of the property or securities deliverable hereunder. In the absence of a certificate having been furnished, the Warrant Agent may conclusively rely upon the provisions of the Warrants with respect to the Common Stock deliverable upon the exercise of the Warrants and the applicable Warrant Price thereof.
(iv) Notwithstanding anything contained herein to the contrary, no adjustment of the Warrant Price shall be determined as set forth made if the amount of such adjustment shall be less than $.05, but in Exhibit A such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to not less than $.05.
(as v) In the event that the number of outstanding shares of Common Stock is increased by a stock dividend payable in Common Stock or by a subdivision of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to Subsection (b) of this Section by reason of such dollar amount per share may dividend or subdivision, the number of shares of Common Stock issuable upon the exercise of each Warrant shall be increased in proportion to such increase in outstanding shares. In the event that the number of shares of Common Stock outstanding is decreased by a combination of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to this Section 89(b) of this Section by reason of such combination, the “number of shares of Common Stock issuable upon the exercise of each Warrant Price”)shall be decreased in proportion to such decrease in the outstanding shares of Common Stock.
(bvi) If In case of any reorganization or reclassification of the outstanding Common Stock (other than a change in par value, or from par value to no par value, or as a result of a subdivision or combination), or in case of any consolidation of the Company shallwith, at any time or from time to time while this Warrant is outstandingmerger of the Company into, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital another corporation (including any such reclassification in connection with other than a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but corporation and which does not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever result in any event listed above shall occur.
(c) If any (i) capital reorganization or reclassification of the share capital of the Company, (ii) consolidation, amalgamation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”Stock), shall be effectedor in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, then, as a condition the holder of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder Warrant then outstanding shall thereafter have the right to purchase the kind and receive amount of shares of Common Stock and other securities and property receivable upon the basis and upon the terms and conditions herein specified and in lieu such reorganization, reclassification, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock which the holder of such Warrant Shares immediately theretofore issuable shall then be entitled to purchase; such adjustments shall apply with respect to all such changes occurring between the date of this Warrant Agreement and the date of exercise of such Warrant.
(vii) Subject to the provisions of this Section 9, in case the Company shall, at any time prior to the exercise of the Warrants, make any distribution of its assets to holders of its Common Stock as a liquidating or a partial liquidating dividend, then the holder of Warrants who exercises its Warrants after the record date for the determination of those holders of Common Stock entitled to such distribution of assets as a liquidating or partial liquidating dividend shall be entitled to receive for the Warrant Price per Warrant, in addition to each share of Common Stock, the amount of such distribution (or, at the option of the Company, a sum equal to the value of any such assets at the time of such distribution as determined by the Board of Directors of the Company in good faith), which would have been payable to such holder had he been the holder of record of the Common Stock receivable upon exercise of its Warrant on the Warrantrecord date for the determination of those entitled to such distribution.
(viii) In case of the dissolution, liquidation or winding up of the highest amount Company, all rights under the Warrants shall terminate on a date fixed by the Company, such date to be no earlier than ten (10) days prior to the effectiveness of such sharesdissolution, securities liquidation or assets as would have been issuable or payable with respect winding up and not later than five (5) days prior to or in exchange for a number such effectiveness. Notice of Warrant Shares equal such termination of purchase rights shall be given to the number of Warrant Shares immediately theretofore issuable upon exercise last registered holder of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) shall thereafter be applicableWarrants, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company same shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing appear on the books of the Company maintained by the Warrant Agent, by registered mail at least thirty (30) days prior to such termination date.
(ix) In case the Company shall, at any time prior to the expiration of the Warrants and prior to the exercise thereof, offer to the holders of its Common Stock any rights to subscribe for additional shares of any class of the Company, shares, securities then the Company shall give written notice thereof to the last registered holder thereof not less than thirty (30) days prior to the date on which the books of the Company are closed or assets as, in accordance with a record date is fixed for the foregoing provisions, determination of the Warrantholder may be stockholders entitled to purchase, such subscription rights. Such notice shall specify the date as to which the books shall be closed or record date fixed with respect to such offer of subscription and the other obligations under this Warrant. The right of the holder thereof to participate in such offer of subscription shall terminate if the Warrant shall not be exercised on or before the date of such closing of the books or such record date.
(x) Any adjustment pursuant to the aforesaid provisions of this paragraph (cSection 9(b) shall similarlybe made on the basis of the number of shares of Common Stock which the holder thereof would have been entitled to acquire by the exercise of the Warrant immediately prior to the event giving rise to such adjustment.
Appears in 1 contract
Warrant Price; Adjustments. Subject and pursuant to (a) The warrant price at which Common Stock shall be purchasable upon the provisions exercise of the Warrants shall be $3.30 per share or, after adjustment as provided in this Section 8Section, shall be such price as so adjusted (the "Warrant Price").
(b) The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to timetime as follows:
(1) In case the Company shall at any time after the date hereof pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, as set forth hereinafterthen upon such dividend or distribution the Warrant Price in effect immediately prior to such dividend or distribution shall forthwith be reduced to a price determined by dividing:
(i) an amount equal to the total number of shares of Common Stock outstanding immediately prior to such dividend or distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by
(ii) the total number of shares of Common Stock outstanding immediately after such dividend or distribution. For the purposes of any computation to be made in accordance with the provisions of this Section 9(b)(1), the following provisions shall be applicable: Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution.
(a2) On each date this Warrant is exercised pursuant to In case the terms hereofCompany shall at any time subdivide or combine the outstanding Common Stock, the Warrant Price per shall forthwith be proportionately decreased in the case of subdivision or increased in the case of combination to the nearest one cent. Any such adjustment shall become effective at the time such subdivision or combination shall become effective.
(3) Within a reasonable time after the close of each quarterly fiscal period of the Company during which the Warrant Share Price has been adjusted as herein provided, the Company shall:
(i) file with the Warrant Agent a certificate signed by the Chief Executive Officer, President or Vice President of the Company and by the Chief Financial Officer, Principal Accounting Officer, Treasurer or Assistant Treasurer of the Company, showing in detail the facts requiring all such adjustments occurring during such period and the Warrant Price after each such adjustment; and
(ii) the Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours, and the Warrant Agent may conclusively rely upon the latest certificate furnished to it hereunder. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making any such adjustment, or with respect to the nature or extent of the property or securities deliverable hereunder. In the absence of a certificate's having been furnished, the Warrant Agent may conclusively rely upon the provisions of the Warrants with respect to the Common Stock deliverable upon the exercise of the Warrants and the applicable Warrant Price.
(4) Notwithstanding anything contained herein to the contrary, no adjustment of the Warrant Price shall be determined as set forth made if the amount of such adjustment shall be less than $0.02, but in Exhibit A such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to not less than $0.02.
(as such dollar amount per share may be 5) In the event that the number of outstanding shares of Common Stock is increased by a stock dividend payable in Common Stock or by a subdivision of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to this Section 89(b) by reason of such dividend or subdivision, the “number of shares of Common Stock issuable upon the exercise of each Warrant Price”)shall be increased in proportion to such increase in outstanding shares. In the event that the number of shares of Common Stock outstanding is decreased by a combination of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to this Section 9(b) by reason of such combination, the number of shares of Common Stock issuable upon the exercise of each Warrant shall be decreased in proportion to such decrease in the outstanding shares of Common Stock.
(b6) If In case of any reorganization or reclassification of the outstanding Common Stock (other than a change in par value, or from par value to no par value, or as a result of a subdivision or combination), or in case of any consolidation of the Company shallwith, at any time or from time to time while this Warrant is outstandingmerger of the Company into, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital another corporation (including any such reclassification in connection with other than a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but corporation and which does not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever result in any event listed above shall occur.
(c) If any (i) capital reorganization or reclassification of the share capital of the Company, (ii) consolidation, amalgamation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”Stock), shall be effectedor in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, then, as a condition the holder of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder Warrant then outstanding shall thereafter have the right to purchase the kind and receive amount of shares of Common Stock and other securities and property receivable upon the basis and upon the terms and conditions herein specified and in lieu such reorganization, reclassification, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock which the holder of such Warrant Shares immediately theretofore issuable shall then be entitled to purchase; such adjustments shall apply with respect to all such changes occurring between the date of this Warrant Agreement and the date of exercise of such Warrant.
(7) Subject to the provisions of this Section 9, in case the Company shall, at any time prior to the exercise of the Warrants, make any distribution of its assets to holders of its Common Stock as a liquidating or a partial liquidating dividend, then the holder of Warrants who exercises its Warrants after the record date for the determination of those holders of Common Stock entitled to such distribution of assets as a liquidating or partial liquidating dividend shall be entitled to receive for the Warrant Price per Warrant, in addition to each share of Common Stock, the amount of such distribution (or, at the option of the Company, a sum equal to the value of any such assets at the time of such distribution as determined by the Board of Directors of the Company in good faith) which would have been payable to such holder had such holder been the holder of record of the Common Stock receivable upon exercise of its Warrant on the Warrantrecord date for the determination of those entitled to such distribution.
(8) In case of the dissolution, liquidation or winding up of the highest amount Company, all rights under the Warrants shall terminate on a date fixed by the Company, such date to be no earlier than ten (10) days prior to the effectiveness of such sharesdissolution, securities liquidation or assets as would have been issuable or payable with respect winding up and not later than five (5) days prior to or in exchange for a number such effectiveness. Notice of Warrant Shares equal such termination of purchase rights shall be given to the number of Warrant Shares immediately theretofore issuable upon exercise last registered holder of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) shall thereafter be applicableWarrants, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company same shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing appear on the books of the Company maintained by the Warrant Agent, by registered mail at least thirty (30) days prior to such termination date.
(9) In case the Company shall, at any time prior to the expiration of the Warrants and prior to the exercise thereof, offer to the holders of its Common Stock any rights to subscribe for additional shares of any class of the Company, shares, securities then the Company shall give written notice thereof to the registered holders of the Warrants not less than thirty (30) days prior to the date on which the books of the Company are closed or assets as, in accordance with a record date is fixed for the foregoing provisions, determination of the Warrantholder may be stockholders entitled to purchase, such subscription rights. Such notice shall specify the date as to which the books shall be closed or the record date fixed with respect to such offer of subscription and the other obligations under this Warrant. The right of the holders of the Warrants to participate in such offer of subscription shall terminate if the Warrant shall not be exercised on or before the date of such closing of the books or such record date.
(10) Any adjustment pursuant to the aforesaid provisions of this paragraph Section 9 shall be made on the basis of the number of shares of Common Stock that the holder thereof would have been entitled to acquire upon the exercise of the Warrant immediately prior to the event giving rise to such adjustment.
(c11) Irrespective of any adjustments in the Warrant Price or the number or kind of shares purchasable upon exercise of the Warrants, Warrants previously or thereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Warrants initially issuable pursuant to this Warrant Agreement.
(12) If at any time, as a result of an adjustment made pursuant to Section 9(b)(6) above, the holder of a Warrant or Warrants shall similarlybecome entitled to purchase any securities other than shares of Common Stock, thereafter the number of such securities so purchasable upon exercise of each Warrant and the Warrant Price for such securities shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in Sections 9(b)(2) through (5).
Appears in 1 contract
Samples: Public Warrant Agreement (Flight Safety Technologies Inc)
Warrant Price; Adjustments. Subject and pursuant to (a) The warrant price at which Common Stock shall be purchasable upon the provisions exercise of the Warrants shall be $5.00 per share or after adjustment, as provided in this Section 8Section, shall be such price as so adjusted (the "Warrant Price").
(b) In the event the Company's results of operations for the first four (4) fiscal quarters following the
(c) The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall also be subject to adjustment from time to time, time as set forth hereinafter.follows:
(ai) On each date this Warrant is exercised pursuant to the terms hereof, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If In case the Company shall, shall at any time or from time to time while this Warrant is outstanding, after the date hereof pay a dividend in shares of Common Stock or make a distribution on its in shares of Common Shares Stock, then upon such dividend or distribution the Warrant Price in Common Shares, subdivide its issued and outstanding Common Shares into effect immediately prior to such dividend or distribution shall forthwith be reduced to a greater price determined by dividing: (A) an amount equal to the total number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares Stock outstanding immediately prior to such change. Such adjustments shall be made successively whenever any event listed above shall occurdividend or distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by (B) the total number of shares of Common Stock outstanding immediately after such issuance or sale.
(cii) If In case the Company shall at any time subdivide or combine the outstanding Common Stock, the Warrant Price shall forthwith be proportionately decreased in the case of subdivision or increased in the case of combination to the nearest one cent. Any such adjustment shall become effective at the time such subdivision or combination shall become effective.
(iiii) capital reorganization or reclassification Within a reasonable time after the close of each quarterly fiscal period of the share capital Company during which the Warrant Price has been adjusted as herein provided, the Company shall: (A) file with the Warrant Agent a certificate signed by the Chief Executive Officer, President or Vice President of the Company and by the Treasurer or Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, (ii) consolidation, amalgamation or merger of showing in detail the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of facts requiring all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets such adjustments occurring during such period and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), shall be effected, then, as a condition of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions herein specified and in lieu of the Warrant Shares immediately theretofore issuable upon exercise of the Warrant, the highest amount of Price after each such shares, securities or assets as would have been issuable or payable with respect to or in exchange for a number of Warrant Shares equal to the number of Warrant Shares immediately theretofore issuable upon exercise of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing on the books of the Company, shares, securities or assets as, in accordance with the foregoing provisions, the Warrantholder may be entitled to purchase, and the other obligations under this Warrant. The provisions of this paragraph (c) shall similarlyadjustment; and
Appears in 1 contract
Warrant Price; Adjustments. Subject and pursuant to the provisions of this Section 8, the Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, as set forth hereinafter.
(a) On each date this Warrant is exercised pursuant to the terms hereof, the Warrant Price per Warrant Share The warrant price at which Common Stock shall be determined as set forth in Exhibit A (as such dollar amount purchasable upon the exercise of the Warrants shall be $5.00 per share may or after adjustment, as provided in this Section, shall be such price as so adjusted pursuant to this Section 8, (the “"Warrant Price”").
(b) If the Company shall, at any time or The Warrant Price shall be subject to adjust- ment from time to time while this Warrant is outstanding, as follows:
(i) In case the Company shall at any time after the date hereof pay a dividend in shares of Common Stock or make a distribution on its in shares of Common Shares Stock, then upon such dividend or distribution the Warrant Price in Common Shares, subdivide its issued and outstanding Common Shares into effect immediately prior to such dividend or distribution shall forthwith be reduced to a greater price determined by dividing: (A) an amount equal to the total number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares Stock outstanding immediately prior to such change. Such adjustments shall be made successively whenever any event listed above shall occurdividend or distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by (B) the total number of shares of Common Stock outstanding immediately after such issuance or sale.
(cii) If In case the Company shall at any time subdivide or combine the outstanding Common Stock, the Warrant Price shall forthwith be proportionately decreased in the case of subdivision or increased in the case of combination to the nearest one cent. Any such adjustment shall become effective at the time such subdivision or combination shall become effective.
(iiii) capital reorganization or reclassification Within a reasonable time after the close of each quarterly fiscal period of the share capital Company during which the Warrant Price has been adjusted as herein provided, the Company shall: (A) file with the Warrant Agent a certificate signed by the Chief Executive Officer, President or Vice President of the Company and by the Treasurer or Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, (ii) consolidation, amalgamation or merger of showing in detail the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of facts requiring all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets such adjustments occurring during such period and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), shall be effected, then, as a condition of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions herein specified and in lieu of the Warrant Shares immediately theretofore issuable upon exercise of the Warrant, the highest amount of Price after each such shares, securities or assets as would have been issuable or payable with respect to or in exchange for a number of Warrant Shares equal to the number of Warrant Shares immediately theretofore issuable upon exercise of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing on the books of the Company, shares, securities or assets as, in accordance with the foregoing provisions, the Warrantholder may be entitled to purchase, and the other obligations under this Warrant. The provisions of this paragraph (c) shall similarlyadjustment; and
Appears in 1 contract
Warrant Price; Adjustments. Subject and pursuant to the provisions of this Section 8, the Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, as set forth hereinafter.
(a) On each date this Warrant is exercised pursuant to the terms hereof, the Warrant Price per Warrant Share The warrant price at which Common Stock shall be determined purchasable upon the exercise of the Warrants shall be $5.00 at any time from , 1997 until 4:00 Eastern time on , 2002 or after adjustment, as set forth provided in Exhibit A this Section, shall be such price as so adjusted (as such dollar amount per share may be adjusted pursuant to this Section 8, the “"Warrant Price”").
(b) If the Company shall, at any time or The Warrant Price shall be subject to adjust- ment from time to time while this Warrant is outstanding, as follows:
(i) In case the Company shall at any time after the date hereof pay a dividend in shares of Common Stock or make a distribution on its in shares of Common Shares Stock, then upon such dividend or distribution the Warrant Price in Common Shares, subdivide its issued and outstanding Common Shares into effect immediately prior to such dividend or distribution shall forthwith be reduced to a greater price determined by dividing:
(A) an amount equal to the total number of shares of Common Stock outstanding immediately prior to such dividend or combine its issued and outstanding Common Shares into a smaller distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by
(B) the total number of shares of Com- mon Stock outstanding immediately after such issuance or issue sale. For the purposes of any computation to be made in accordance with the provisions of this clause (i), the following provisions shall be applicable: Common Stock issuable by reclassification way of its dividend or other distribution on any stock of the Company shall be deemed to have been issued and immediately after the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution.
(ii) In case the Company shall at any time subdivide or combine the outstanding Common Shares any Stock, the Warrant Price shall forthwith be proportionately decreased in the case of its share capital subdivision or increased in the case of combination to the nearest one cent. Any such adjustment shall become effective at the time such subdivision or combination shall become effective.
(including iii) Within a reasonable time after the close of each quarterly fiscal period of the Company during which the Warrant Price has been adjusted as herein provided, the Company shall
(A) file with the Warrant Agent a cer- tificate signed by the President or Vice President of the Company and by the Treasurer or Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, showing in detail the facts requiring all such adjustments occurring during such period and the Warrant Price after each such adjustment; and
(B) the Warrant Agent shall have no duty with respect to any such reclassification certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours, and the Warrant Agent may conclusively rely upon the latest certificate furnished to it hereunder. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in connection making any such adjustment, or with respect to the nature or extent of the property or securities deliverable hereunder. In the absence of a certificate having been furnished, the Warrant Agent may conclusively rely upon the provisions of the Warrants with respect to the Common Stock deliver- able upon the exercise of the Warrants and the applicable Warrant Price thereof.
(C) Notwithstanding anything contained herein to the contrary, no adjustment of the Warrant Price shall be made if the amount of such adjustment shall be less than $.05, but in such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to not less than $.05.
(c) In the event that the number of outstanding shares of Common Stock is increased by a stock dividend payable in Common Stock or by a subdivision of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to Subsection (b) of this Section by reason of such dividend or subdivision, the number of shares of Common Stock issuable upon the exercise of each Warrant shall be increased in proportion to such increase in outstanding shares. In the event that the number of shares of Common Stock outstanding is decreased by a combination of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to Subsection (b) of this Section by reason of such combination, the number of shares of Common Stock issuable upon the exercise of each Warrant shall be decreased in proportion to such decrease in the outstanding shares of Common Stock.
(d) In case of any reorganization or reclassifi- cation of the outstanding Common Stock (other than a change in par value, or from par value to no par value, or as a result of a subdivision or combination), or in case of any consolidation of the Company with, or merger of the Company into, another corporation (other than a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but corporation and which does not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever result in any event listed above shall occur.
(c) If any (i) capital reorganization or reclassification of the share capital of the Company, (ii) consolidation, amalgamation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”Stock), shall be effectedor in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, then, as a condition the holder of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder Warrant then outstanding shall thereafter have the right to purchase the kind and receive amount of shares of Common Stock and other securities and property receivable upon the basis and upon the terms and conditions herein specified and in lieu such reorganization, reclassification, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock which the holder of such Warrant Shares immediately theretofore issuable shall then be entitled to purchase; such adjustments shall apply with respect to all such changes occurring between the date of this Warrant Agreement and the date of exercise of such Warrant.
(e) Subject to the provisions of this Section 9, in case the Company shall, at any time prior to the exercise of the Warrants, make any distribution of its assets to holders of its Common Stock as a liquidating or a partial liquidating dividend, then the holder of Warrants who exercises his Warrants after the record date for the determination of those holders of Common Stock entitled to such distribution of assets as a liquidating or partial liquidating dividend shall be entitled to receive for the Warrant Price per Warrant, in addition to each share of Common Stock, the amount of such distribution (or, at the option of the Company, a sum equal to the value of any such assets at the time of such distribution as determined by the Board of Directors of the Company in good faith), which would have been payable to such holder had he been the holder of record of the Common Stock receivable upon exercise of his Warrant on the Warrantrecord date for the determination of those entitled to such distribution.
(f) In case of the dissolution, liquidation or winding-up of the highest amount Company, all rights under the Warrants shall terminate on a date fixed by the Company, such date to be no earlier than ten (10) days prior to the effectiveness of such sharesdissolution, securities liquidation or assets as would have been issuable or payable with respect winding-up and not later than five (5) days prior to or in exchange for a number such effectiveness. Notice of Warrant Shares equal such termination of purchase rights shall be given to the number of Warrant Shares immediately theretofore issuable upon exercise last registered holder of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) shall thereafter be applicableWarrants, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company same shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing appear on the books of the Company maintained by the Warrant Agent, by registered mail at least thirty (30) days prior to such termination date.
(g) In case the Company shall, at any time prior to the expiration of the Warrants and prior to the exercise thereof, offer to the holders of its Common Stock any rights to subscribe for additional shares of any class of the Company, sharesthen the Company shall give written notice thereof to the last registered holder thereof not less than thirty (30) days prior to the date on which the books of the Company are closed or a record date is fixed for the determination of the stockholders entitled to such subscription rights. Such notice shall specify the date as to which the books shall be closed or record date fixed with respect to such offer of subscription and the right of the holder thereof to participate in such offer of subscription shall terminate if the Warrant shall not be exercised on or before the date of such closing of the books or such record date.
(h) Any adjustment pursuant to the aforesaid pro- visions shall be made on the basis of the number of shares of Common Stock which the holder thereof would have been entitled to acquire by the exercise of the Warrant immediately prior to the event giving rise to such adjustment.
(i) Irrespective of any adjustments in the War- rant Price or the number or kind of shares purchasable upon exercise of the Warrants, securities Warrants previously or assets asthereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Warrants initially issuable pursuant to this Warrant Agreement.
(j) The Company may retain a firm of independent public accountants (who may be any such firm regularly employed by the Company) to make any computation required under this Section, in accordance with and any certificate setting forth such computation signed by such firm shall be conclusive evidence of the foregoing provisionscorrectness of any computation made under this Section.
(k) If at any time, as a result of an adjustment made pursuant to paragraph (d) above, the Warrantholder may be holders of a Warrant or Warrants shall become entitled to purchasepurchase any securities other than shares of Common Stock, thereafter the number of such securities so purchasable upon exercise of each Warrant and the other obligations under this Warrant. The Warrant Price for such shares shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions of this paragraph with respect to the Common Stock contained in paragraphs (b) and (c).
(l) shall similarlyNo adjustment to the Purchase Price of the Warrants or to the number of shares of Common Stock purchasable upon the exercise of such Warrants will be made, however under the following circumstances:
(i) upon the grant or exercise of any of the options presently outstanding (or options which may hereafter be granted and/or exercised) under the Company's 1995 Stock Option Plan for officers, directors and/or employees, consultants and similar situated parties of the Company; or
(ii) upon the exercise of any of the options presently outstanding granted to directors and counsel to the Company in 1995 or as otherwise set forth in the Prospectus of the Company dated , 1997; or
(iii) upon the sale or exercise of the Warrants; or
(iv) upon exercise of the Underwriters' Warrants as otherwise described in the Company's Prospectus dated [ ], 1997; or
Appears in 1 contract
Samples: Warrant Agreement (American International Consolidated Inc)
Warrant Price; Adjustments. Subject A. The warrant price per share at which Shares shall be purchasable upon exercise of Warrants (herein called the "warrant exercise price") to and pursuant including the expiration date (unless the expiration date is extended as provided below in this Section 9A) shall be $______ per share, or, if adjusted as provided in this Section, shall be such price as so adjusted. The Warrants will not be exercisable prior to [the close of business on the date of any initial issuance thereof] [_____________________] and will expire at 3:30 p.m., New York City time, on the expiration date; provided that the Company reserves the right to, and may, in its sole discretion, at any time and from time to time, at such time or times as the Company so determines, extend the expiration date of the Warrants for such periods of time as it chooses; further provided that in no case may the expiration date of the Warrants (as extended) be extended beyond five years from the expiration date set forth above. Whenever the expiration date of the Warrants is so extended, the Company shall at least 20 days prior to the then expiration date cause to be mailed to the Warrant Agent and the registered holders of the Warrants in accordance with the provisions of this Section 817 hereof a notice stating that the expiration date has been extended and setting forth the new expiration date.
B. The above provision is, however, subject to the following:
(1) The warrant purchase price, the number of Shares purchasable upon exercise of each Warrant Price and the number of Warrants outstanding shall be determinedsubject to adjustment as follows:
(a) In case the Company shall at any time after the date of this Agreement (i) pay a dividend, and or make a distribution, on the Warrant Price and Common Stock which is payable in shares of its capital stock (whether shares of Common Stock or of capital stock of any other class), (ii) subdivide or reclassify its outstanding shares of Common Stock into a greater number of securities (including shares of Common Stock), or (iii) combine or reclassify its outstanding shares of Common Stock into a smaller number of shares (including shares of Common Stock), the number of shares purchasable upon exercise of each Warrant Shares subject immediately prior to the occurrence of such event shall be adjusted so that the holder of each Warrant shall be entitled to receive upon payment of the warrant purchase price the aggregate number of shares of the Company which, if such Warrant had been exercised immediately prior to the occurrence of such event, such holder would have owned or have been entitled to receive immediately after the occurrence of such event. An adjustment made pursuant to this subparagraph (a) shall become effective immediately after the record date in the case of a dividend and shall become effective immediately after the effective date in the case of a subdivision or combination. If, as a result of an adjustment made pursuant to this subparagraph (a), the holder of any Warrant thereafter exercised shall become entitled to receive shares of two or more classes of capital stock of the Company, the Board of Directors of the Company (whose determination shall be conclusive) shall determine the allocation between or among shares of such classes of capital stock. In the event that at any time, as a result of an adjustment made pursuant to this subparagraph (a), the holder of any Warrant thereafter exercised shall become entitled to receive any shares or other securities of the Company other than shares of Common Stock, thereafter the number of such other shares so received upon exercise of any Warrant shall be subject to adjustment from time to time, time in a manner and on terms as set forth hereinafter.
(a) On each date this Warrant is exercised pursuant nearly equivalent as practicable to the provisions with respect to the shares of Common Stock contained in this paragraph, and other provisions of this paragraph 9B(1) with respect to the shares of Common Stock shall apply on like terms hereof, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as to any such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”)other shares or other securities.
(b) If In case the Company shall, at any time shall fix a record date for the issuance of rights or from time warrants to time while this Warrant is outstanding, pay a dividend or make a distribution on all holders of its Common Shares Stock entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Stock at a price per share less than the current market price per share of Common Stock (as defined in Common Sharessubparagraph (e) below) at such record date, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant warrant purchase price shall be adjusted determined by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant warrant purchase price in effect immediately prior to (but not including) the such record date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Shares of Common Stock outstanding on such record date plus the number of Shares outstanding immediately after giving effect to of Common Stock which the aggregate offering price of the total number of Shares so offered would purchase at such change current market price, and the denominator of which shall be the number of Shares of Common Stock outstanding on such record date plus the number of additional Shares outstanding immediately prior to such changeof Common Stock offered for subscription or purchase. Such adjustments adjustment shall be made successively whenever such a record date is fixed, and shall become effective immediately after such record date. In determining whether any event listed above rights or warrants entitle the holders to subscribe for or purchase Shares of Common Stock at less than such current market price, and in determining the aggregate offering price of such shares, there shall occurbe taken into account any consideration received by the Company for such rights or warrants, the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. Common Stock owned by or held for the account of the Company or any majority owned subsidiary shall not be deemed outstanding for the purpose of any adjustment required under this subparagraph (b).]
(c) If In case the Company shall fix a record date for making a distribution to all holders of its Common Stock of evidences of its indebtedness or assets (excluding regular quarterly or other periodic or recurring cash dividends or distributions and cash dividends or distributions paid from retained earnings or referred to in subparagraph (a) above) or rights or warrants to subscribe or warrants to purchase (excluding those referred to in subparagraph (b) above), then in each such case the warrant purchase price shall be determined by multiplying the warrant purchase price in effect immediately prior to such record date by a fraction (x) the numerator of which shall be such current market price (as defined in subparagraph (e) below) per Share of Common Stock on such record date, less the then fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive) of the portion of the assets or evidences of indebtedness so distributed or of such subscription rights or warrants applicable to one share of the Common Stock and (y) the denominator of which shall be the current market price per share of the Common Stock on such record date. Such adjustment shall be made successively whenever such a record date is fixed and shall become effective immediately after such record date. Notwithstanding the foregoing, in the event that the Company shall distribute any rights or warrants to acquire capital stock ("Rights") pursuant to this subparagraph (c), the distribution of separate certificates representing such Rights subsequent to their initial distribution (whether or not such distribution shall have occurred prior to the date of the issuance of such Warrants) shall be deemed to be the distribution of such Rights for purposes of this subparagraph (c), provided that the Company may, in lieu of making any adjustment pursuant to this subparagraph (c) upon a distribution of separate certificates representing such Rights, make proper provision so that each holder of such Warrants who exercises such Warrants (or any portion thereof) (A) before the record date for such distribution of separate certificates shall be entitled to receive upon such exercise shares of Common Stock issued with Rights and (B) after such record date and prior to the expiration, redemption or termination of such Rights shall be entitled to receive upon such exercise, in addition to the shares of Common Stock issuable upon such exercise, the same number of such Rights as would a holder of the number of shares of Common Stock that such Warrants so exercised would have entitled the holder thereof to purchase in accordance with the terms and provisions of and applicable to the Rights if such Warrants were exercised immediately prior to the record date for such distribution. Common Stock owned by or held for the account of the Company or any majority owned subsidiary shall not be deemed outstanding for the purpose of any adjustment required under this subparagraph (c).]
(d) After each adjustment of the number of shares purchasable upon exercise of each Warrant pursuant to subparagraph 9B(1)(a), the warrant exercise price shall be adjusted by multiplying such warrant exercise price immediately prior to such adjustment by a fraction of which the numerator shall be the number of Shares purchasable upon exercise of each Warrant immediately prior to such adjustment, and the denominator of which shall be the number of Shares so purchasable immediately thereafter. [After each adjustment of the warrant exercise price pursuant to subparagraph 9B(1)(b) or (c), the total number of Shares or fractional part thereof purchasable upon the exercise of each Warrant shall be proportionately adjusted to such number of shares or fractional parts thereof as the aggregate warrant exercise price of the number of shares or fractional part thereof purchasable immediately prior to such adjustment will buy at the adjusted warrant exercise price.]
(e) For the purpose of any computation under subparagraphs 9B(1)(b) and (c) above, the current market price per Share of Common Stock at any date shall be deemed to be the average of the daily closing prices for the 30 consecutive business days commencing 45 business days before the day in question. The closing price for each day shall be (i) capital reorganization if the Common Stock is listed or reclassification admitted for trading on the New York Stock Exchange, the last sale price (regular way), or the average of the share capital closing bid and ask prices (regular way), if no sale occurred, of Common Stock, in either case as reported on the New York Stock Exchange Composite Tape or, if the Common Stock is not listed or admitted to trading on the New York Stock Exchange, on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the National Market System of the CompanyNational Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or, (ii) consolidationif not listed or quoted as described in (i), amalgamation the mean between the closing high bid and low asked quotations of Common Stock reported by NASDAQ, or merger any similar system for automated dissemination of quotations of securities prices then in common use, if so quoted, or (iii) if not quoted as described in clause (ii), the mean between the high bid and low asked quotations for Common Stock as reported by the National Quotation Bureau Incorporated if at least two securities dealers have inserted both bid and asked quotations for Common Stock on at least 5 of the 10 preceding days. If none of the conditions set forth above is met, the closing price of Common Stock on any day or the average of such closing prices for any period shall be the fair market value of Common Stock as determined by a member firm of the New York Stock Exchange selected by the Company.]
(A) Nothing contained herein shall be construed to require an adjustment as a result of the issuance of Common Stock pursuant to, or the granting or exercise of any rights under, the Company's [List employee and shareholder plans, if any, that might otherwise result in adjustments].
(B) In addition, no adjustment in the warrant exercise price shall be required unless and until the earlier of the following shall have occurred: (x) such adjustment would require an increase or decrease of at least 1% in the warrant exercise price or (y) a period of 3 years shall have elapsed from the date of the occurrence of any event requiring any such adjustment pursuant to subparagraphs 9B(1)(a)[, (b) or (c)] above. All adjustments shall be made to the nearest one hundredth of a Share and the nearest cent, and any adjustments which by reason of this subparagraph (f) are not required to be made shall be carried forward cumulatively and taken into account in any subsequent adjustment which (including such carry-forward) is required to be made under this subparagraph (f).
(g) In any case in which this subparagraph 9B(1) shall require that an adjustment be made retroactively immediately following a record date, the Company may elect to defer (but only until five business days following the mailing of the notice described in subparagraph 9B(5) below) issuing to the holder of any Warrant exercised after such record date the Shares of the Company with another company in which issuable upon such exercise over and above the Shares issuable upon such exercise only on the basis of the warrant exercise price prior to adjustment.
(h) The Company may, at its option, at any time until the expiration date, reduce the then current warrant exercise price to any amount deemed appropriate by the Board of Directors of the Company is for any period not the survivor, exceeding twenty (iii20) sale, transfer or other disposition consecutive days (as evidenced in a resolution adopted by such Board of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”Directors), shall be effectedbut only upon giving the notices required by subparagraph 9(B)(5) twenty (20) days prior to taking such action.
(i) Except as herein otherwise expressly provided, then, as a condition of such Fundamental Transaction, lawful and adequate provision no adjustment in the warrant exercise price shall be made whereby each Warrantholder shall thereafter have by reason of the issuance of Shares, or securities convertible into or exchangeable for Shares, or securities carrying the right to purchase and receive upon the basis and upon the terms and conditions herein specified and in lieu any of the Warrant Shares immediately theretofore issuable upon exercise foregoing or for any other reason whatsoever.
(j) Irrespective of any of the Warrant, adjustments in the highest amount of such shares, securities warrant exercise price or assets as would have been issuable or payable with respect to or in exchange for a number of Warrant Shares equal to the number of Shares, Warrant Certificates theretofore issued may continue to express the same prices and number of shares as are stated in a similar Warrant Certificate issuable initially, or at some subsequent time, pursuant to this Agreement and such number of Shares immediately theretofore issuable upon exercise of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision specified therein shall be made with respect deemed to the rights and interests have been so adjusted.
(2) No fractional Shares of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) Common Stock shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable issued upon the exercise hereofof Warrants. The Company If more than one Warrant shall not effect any such Fundamental Transaction unless prior to or simultaneously with be exercised at one time by the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing on the books of the Company, shares, securities or assets as, in accordance with the foregoing provisionssame holder, the Warrantholder may number of full Shares which shall be entitled to purchase, and the other obligations under this Warrant. The provisions of this paragraph (c) issuable upon such exercise shall similarlybe computed on the
Appears in 1 contract
Warrant Price; Adjustments. Subject A. The price at which Common Stock shall be purchasable upon exercise of Warrants at any time after the Common Stock and pursuant to Warrants become separately tradable until __________, 2002 (hereinafter called the provisions "Warrant Price") shall be $9.00 per share of Common Stock or, if adjusted as provided in this Section 8Section, the shall be such price as so adjusted.
B. The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, time as set forth hereinafter.follows:
(a1) On each date this Warrant is exercised pursuant to the terms hereofExcept as hereinafter provided, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If case the Company shall, shall at any time or from time to time while after the date hereof issue any additional shares of Common Stock for a consideration per share less than the Warrant Price in effect immediately prior to the issuance of such additional shares, or without consideration, then, upon each such issuance, the Warrant Price in effect immediately prior to the issuance of such additional shares shall forthwith be reduced to a price (calculated to the nearest full cent) determined by dividing:
(a) An amount equal to (i) the total number of shares of Common Stock outstanding immediately prior to such issuance multiplied by the Warrant Price in effect immediately prior to such issuance, plus (ii) the consideration, if any, received by the Company upon such issuance, by
(b) The total number of shares of Common Stock outstanding immediately after the issuance of such additional shares.
(2) The Company shall not be required to make any such adjustment of the Warrant Price in accordance with the foregoing if the amount of such adjustment shall be less than $.25 (adjustment will be made when cumulative adjustment equals or exceeds $0.25) but in such case the Company shall maintain a cumulative record of the Warrant Price as it would have been in the absence of this provision (the "Constructive Warrant Price"), and for the purpose of computing a new Warrant Price after the next subsequent issuance of additional shares (but not for the purpose of determining whether an adjustment thereof is outstandingrequired under the terms of this paragraph) the constructive Warrant Price shall be deemed to be the Warrant Price in effect immediately prior to such issuance.
(3) For the purpose of this ss.8 the following provisions shall also be applicable:
(a) In the case of the issuance of additional shares of Common Stock for cash, pay the consideration received by the Company therefor shall be deemed to be the net cash proceeds received by the Company for such shares before deducting any commissions or other expenses paid or incurred by the Company for any underwriting of, or otherwise in connection with, the issuance of such shares.
(b) In case of the issuance (otherwise than upon conversion or exchange of shares of Common Stock) of additional shares of Common Stock for a consideration other than cash or a consideration a part of which shall be other than cash, the amount of the consideration other than cash received by the Company for such shares shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company, as of the date of the adoption of the resolution of said Board, providing for the issuance of such shares for consideration other than cash or for consideration a part of which shall be other than cash, such fair value to include goodwill and other intangibles to the extent determined in good faith by the Board.
(c) In case of the issuance by the Company after the date hereof of any security (other than the Warrants) that is convertible into shares of Common Stock or of any warrants, rights or options to purchase shares of Common Stock (except the options and warrants referred to in subsection H of this ss.8), (i) the Company shall be deemed (as provided in subparagraph (e) below) to have issued the maximum number of shares of Common Stock deliverable upon the exercise of such conversion privileges or warrants, rights or options, and (ii) the consideration therefor shall be deemed to be the consideration received by the Company for such convertible securities or for such warrants, rights or options, as the case may be, before deducting therefrom any expenses or commissions incurred or paid by the Company for any underwriting of, or otherwise in connection with, the issuance of such convertible security or warrants, rights or options, plus (A) the minimum consideration or adjustment payment to be received by the Company in connection with such conversion, or (B) the minimum price at which shares of Common Stock are to be delivered upon exercise of such warrants, rights or options or, if no minimum price is specified and such shares are to be delivered at an option price related to the market value of the subject shares, an option price bearing the same relation to the market value of the subject shares at the time such warrants, rights or options were granted; provided that as to such options such further adjustment as shall be necessary on the basis of the actual option price at the time of exercise shall be made at such time if the actual option price is less than the aforesaid assumed option price. No further adjustment of the Warrant Price shall be made as a result of the actual issuance of the shares of Common Stock referred to in this subparagraph (c). On the expiration of such warrants, rights or options, or the termination of such right to convert, the Warrant Price shall be readjusted to such Warrant Price as would have pertained had the adjustments made upon the issuance of such warrants, rights, options or convertible securities been made upon the basis of the delivery of only the number of shares of Common Stock actually delivered upon the exercise of such warrants, rights or options or upon the conversion of such securities.
(d) For the purposes hereof, any additional shares of Common Stock issued as a stock dividend shall be deemed to have been issued for no consideration.
(e) The number of shares of Common Stock at any time outstanding shall include the aggregate number of shares deliverable in respect of the convertible securities, rights and options referred to in subparagraph (c) of this paragraph; provided that with respect to shares referred to in clause (i) of subparagraph (c), to the extent that such warrants, options, rights or make a distribution on its Common Shares in Common Sharesconversion privileges are not exercised, such shares shall be deemed to be outstanding only until the expiration dates of the warrants, rights, options or conversion privileges or the prior cancellation thereof.
C. In case the Company shall at any time subdivide its issued and outstanding shares of Common Shares Stock into a greater number of shares, the Warrant Price in effect immediately prior to such subdivision shall be proportionately reduced and, in case the outstanding shares or combine its issued and outstanding of the Common Shares Stock of the Company shall be combined into a smaller number of shares or issue by reclassification shares, the Warrant Price in effect immediately prior to such combination shall be proportionately increased.
D. Upon each adjustment of its issued and outstanding Common Shares any the Warrant Price pursuant to the provisions of its share capital (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing company)this ss.8, then the number of Warrant Shares purchasable shares issuable upon the exercise of this each Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately Price in effect prior to (but not including) the date on which such change shall become effective adjustment by a fraction, the numerator of which is shall be the number of shares of Common Shares outstanding immediately after giving Stock covered by the Warrant and dividing the product so obtained by the adjusted Warrant Price.
E. Except upon consolidation or reclassification of the shares of Common Stock of the Company as provided for in subsection (C) hereof and except for readjustment of the Warrant Price upon expiration of warrants, rights or options as provided for in subparagraph (c) of paragraph 3 of subsection (B) hereof, the Warrant Price in effect to such at any time may not be adjusted upward or increased in any manner whatsoever.
F. Irrespective of any adjustment or change and in the denominator of which shall be Warrant Price or the number of shares of Common Shares outstanding immediately prior Stock actually purchasable under the several Warrants, the Warrants theretofore and thereafter issued may continue to such change. Such adjustments shall be made successively whenever any event listed above shall occurexpress the Warrant Price per share and the number of shares purchasable thereunder as the Warrant Price per share and the number of shares purchasable were expressed in the Warrants when initially issued.
(c) G. If any (i) capital reorganization or reclassification of the share capital stock of the Company, Company (iiother than a distribution of stock in accordance with ss.10(B)) consolidation, amalgamation or consolidation or merger of the Company with another company in which corporation or the Company is not the survivor, (iii) sale, transfer or other disposition sale of all or substantially all of the Company’s its assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), corporation shall be effected, then, as a condition of such Fundamental Transactionreorganization, reclassification, consolidation, merger or sale, lawful and adequate provision shall be made whereby the holder of each Warrantholder Warrant then outstanding shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions specified herein specified and in the Warrants and in lieu of the Warrant Shares shares of the Common Stock of the Company immediately theretofore issuable purchasable and receivable upon the exercise of the rights represented by each such Warrant, the highest amount such shares of such sharesstock, securities or assets as would have been issuable may be issued or payable with respect to or in exchange for a number of Warrant Shares outstanding shares of such Common Stock equal to the number of Warrant Shares shares of such Common stock immediately theretofore issuable purchasable and receivable upon the exercise of the Warrant, rights represented by each such Warrant had such Fundamental Transaction reorganization, reclassification, consolidation, merger or sale not taken place, and in any such case appropriate provision provisions shall be made with respect to the rights and interests interest of the holder of each Warrantholder Warrant then outstanding to the end that the provisions hereof thereof (including, including without limitation, provision limitation provisions for adjustment of the Warrant PricePrice and of the number of shares purchasable upon the exercise of each Warrant then outstanding) shall thereafter be applicable, applicable as nearly equivalent as may be practicable in relation to any sharesshares of stock, securities or assets thereafter deliverable upon the exercise hereof. The of each Warrant.
H. No adjustment of the Warrant Price shall be made in connection with the issuance or sale of shares of Common Stock issuable pursuant to currently outstanding options and warrants granted to officers, directors, employees, advisory directors, or affiliates of the Company.
I. Whenever the Warrant Price is adjusted as herein provided, the Company shall not effect any such Fundamental Transaction unless prior to or simultaneously (a) forthwith file with the consummation thereof Warrant Agent a certificate signed by the successor company (if other than Chairman of the Company) resulting from such consolidation, amalgamation or merger, Board or the company purchasing President or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address a Vice President of the Warrantholder appearing on Company and by the books Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, sharesshowing in detail the facts requiring such adjustment and the Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants after such adjustment and (b) cause a notice stating that such adjustment has been effected and stating the adjusted Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants to be published at least once a week for two consecutive weeks in a newspaper of general circulation in Dallas, securities Texas and in New York, New York. The Company, at its option, may cause a copy of such notice to be sent by first class mail, postage prepaid, to each registered holder of Warrants at his address appearing on the Warrant register. The Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours. The Warrant Agent shall not at any time be under any duty or assets asresponsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making such adjustment.
J. The Company may retain a firm of independent certified public accountants of recognized standing (which may be the firm that regularly examines the financial statements of the Company) selected by the Board of Directors of the Company or the Executive Committee of said Board and approved by the Warrant Agent, to make any computation required under this ss.8, and a certificate signed by such firm shall be conclusive evidence of the correctness of any computation made under this ss.8.
K. In case at any time conditions shall arise by reason of action taken by the Company which, in accordance with the foregoing provisionsopinion of the Board of Directors of the Company, the Warrantholder may be entitled to purchase, and are not adequately covered by the other obligations under this Warrant. The provisions of this paragraph Agreement and which might materially and adversely affect the rights of the holders of the Warrants, or in case at any time any such conditions are expected to arise by reason of any action contemplated by the Company, the Board of Directors of the Company shall appoint a firm of independent certified public accountants of recognized standing (cwhich may be the firm that regularly examines the financial statements of the Company), who shall give their opinion as to the adjustment, if any (not inconsistent with the standards established in this ss.8), of the Warrant Price and the number of shares of Common Stock purchasable pursuant hereto (including, if necessary, any adjustment as to the property which may be purchasable in lieu thereof upon exercise of the Warrants) which is, or would be, required to preserve without dilution the rights of the holders of the Warrants. The Board of Directors of the Company shall similarlymake the adjustment recommended forthwith upon the receipt of such opinion or the taking of any such action contemplated, as the case may be; provided, however, that no adjustment of the Warrant Price shall be made which in the opinion of the accountant or firm of accountants giving the aforesaid opinion would result in an increase of the Warrant Price to more than the Warrant Price then in effect except as otherwise provided in subsection E of this ss.8.
Appears in 1 contract
Samples: Warrant Agreement (Westower Corp)
Warrant Price; Adjustments. Subject A. The price at which Common Stock shall be purchasable upon exercise of Warrants at any time after the Common Stock and pursuant to Warrants become separately tradable until __________, 2002 (hereinafter called the provisions "Warrant Price") shall be $_____ per share of Common Stock or, if adjusted as provided in this Section 8Section, the shall be such price as so adjusted.
B. The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, time as set forth hereinafter.follows:
(a1) On each date this Warrant is exercised pursuant to the terms hereofExcept as hereinafter provided, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If case the Company shall, shall at any time or from time to time while after the date hereof issue any additional shares of Common Stock for a consideration per share less than the Warrant Price in effect immediately prior to the issuance of such additional shares, or without consideration, then, upon each such issuance, the Warrant Price in effect immediately prior to the issuance of such additional shares shall forthwith be reduced to a price (calculated to the nearest full cent) determined by dividing:
(a) An amount equal to (i) the total number of shares of Common Stock outstanding immediately prior to such issuance multiplied by the Warrant Price in effect immediately prior to such issuance, plus (ii) the consideration, if any, received by the Company upon such issuance, by
(b) The total number of shares of Common Stock outstanding immediately after the issuance of such additional shares.
(2) The Company shall not be required to make any such adjustment of the Warrant Price in accordance with the foregoing if the amount of such adjustment shall be less than $.25 (adjustment will be made when cumulative adjustment equals or exceeds $0.25) but in such case the Company shall maintain a cumulative record of the Warrant Price as it would have been in the absence of this provision (the "Constructive Warrant Price"), and for the purpose of computing a new Warrant Price after the next subsequent issuance of additional shares (but not for the purpose of determining whether an adjustment thereof is outstandingrequired under the terms of this paragraph) the constructive Warrant Price shall be deemed to be the Warrant Price in effect immediately prior to such issuance.
(3) For the purpose of this ss.8 the following provisions shall also be applicable:
(a) In the case of the issuance of additional shares of Common Stock for cash, pay the consideration received by the Company therefor shall be deemed to be the net cash proceeds received by the Company for such shares before deducting any commissions or other expenses paid or incurred by the Company for any underwriting of, or otherwise in connection with, the issuance of such shares.
(b) In case of the issuance (otherwise than upon conversion or exchange of shares of Common Stock) of additional shares of Common Stock for a consideration other than cash or a consideration a part of which shall be other than cash, the amount of the consideration other than cash received by the Company for such shares shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company, as of the date of the adoption of the resolution of said Board, providing for the issuance of such shares for consideration other than cash or for consideration a part of which shall be other than cash, such fair value to include goodwill and other intangibles to the extent determined in good faith by the Board.
(c) In case of the issuance by the Company after the date hereof of any security (other than the Warrants) that is convertible into shares of Common Stock or of any warrants, rights or options to purchase shares of Common Stock (except the options and warrants referred to in subsection H of this ss.8), (i) the Company shall be deemed (as provided in subparagraph (e) below) to have issued the maximum number of shares of Common Stock deliverable upon the exercise of such conversion privileges or warrants, rights or options, and (ii) the consideration therefor shall be deemed to be the consideration received by the Company for such convertible securities or for such warrants, rights or options, as the case may be, before deducting therefrom any expenses or commissions incurred or paid by the Company for any underwriting of, or otherwise in connection with, the issuance of such convertible security or warrants, rights or options, plus (A) the minimum consideration or adjustment payment to be received by the Company in connection with such conversion, or (B) the minimum price at which shares of Common Stock are to be delivered upon exercise of such warrants, rights or options or, if no minimum price is specified and such shares are to be delivered at an option price related to the market value of the subject shares, an option price bearing the same relation to the market value of the subject shares at the time such warrants, rights or options were granted; provided that as to such options such further adjustment as shall be necessary on the basis of the actual option price at the time of exercise shall be made at such time if the actual option price is less than the aforesaid assumed option price. No further adjustment of the Warrant Price shall be made as a result of the actual issuance of the shares of Common Stock referred to in this subparagraph (c). On the expiration of such warrants, rights or options, or the termination of such right to convert, the Warrant Price shall be readjusted to such Warrant Price as would have pertained had the adjustments made upon the issuance of such warrants, rights, options or convertible securities been made upon the basis of the delivery of only the number of shares of Common Stock actually delivered upon the exercise of such warrants, rights or options or upon the conversion of such securities.
(d) For the purposes hereof, any additional shares of Common Stock issued as a stock dividend shall be deemed to have been issued for no consideration.
(e) The number of shares of Common Stock at any time outstanding shall include the aggregate number of shares deliverable in respect of the convertible securities, rights and options referred to in subparagraph (c) of this paragraph; provided that with respect to shares referred to in clause (i) of subparagraph (c), to the extent that such warrants, options, rights or make a distribution on its Common Shares in Common Sharesconversion privileges are not exercised, such shares shall be deemed to be outstanding only until the expiration dates of the warrants, rights, options or conversion privileges or the prior cancellation thereof.
C. In case the Company shall at any time subdivide its issued and outstanding shares of Common Shares Stock into a greater number of shares, the Warrant Price in effect immediately prior to such subdivision shall be proportionately reduced and, in case the outstanding shares or combine its issued and outstanding of the Common Shares Stock of the Company shall be combined into a smaller number of shares or issue by reclassification shares, the Warrant Price in effect immediately prior to such combination shall be proportionately increased.
D. Upon each adjustment of its issued and outstanding Common Shares any the Warrant Price pursuant to the provisions of its share capital (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing company)this ss.8, then the number of Warrant Shares purchasable shares issuable upon the exercise of this each Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately Price in effect prior to (but not including) the date on which such change shall become effective adjustment by a fraction, the numerator of which is shall be the number of shares of Common Shares outstanding immediately after giving Stock covered by the Warrant and dividing the product so obtained by the adjusted Warrant Price.
E. Except upon consolidation or reclassification of the shares of Common Stock of the Company as provided for in subsection (C) hereof and except for readjustment of the Warrant Price upon expiration of warrants, rights or options as provided for in subparagraph (c) of paragraph 3 of subsection (B) hereof, the Warrant Price in effect to such at any time may not be adjusted upward or increased in any manner whatsoever.
F. Irrespective of any adjustment or change and in the denominator of which shall be Warrant Price or the number of shares of Common Shares outstanding immediately prior Stock actually purchasable under the several Warrants, the Warrants theretofore and thereafter issued may continue to such change. Such adjustments shall be made successively whenever any event listed above shall occurexpress the Warrant Price per share and the number of shares purchasable thereunder as the Warrant Price per share and the number of shares purchasable were expressed in the Warrants when initially issued.
(c) G. If any (i) capital reorganization or reclassification of the share capital stock of the Company, Company (iiother than a distribution of stock in accordance with ss.10(B)) consolidation, amalgamation or consolidation or merger of the Company with another company in which corporation or the Company is not the survivor, (iii) sale, transfer or other disposition sale of all or substantially all of the Company’s its assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), corporation shall be effected, then, as a condition of such Fundamental Transactionreorganization, reclassification, consolidation, merger or sale, lawful and adequate provision shall be made whereby the holder of each Warrantholder Warrant then outstanding shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions specified herein specified and in the Warrants and in lieu of the Warrant Shares shares of the Common Stock of the Company immediately theretofore issuable purchasable and receivable upon the exercise of the rights represented by each such Warrant, the highest amount such shares of such sharesstock, securities or assets as would have been issuable may be issued or payable with respect to or in exchange for a number of Warrant Shares outstanding shares of such Common Stock equal to the number of Warrant Shares shares of such Common stock immediately theretofore issuable purchasable and receivable upon the exercise of the Warrant, rights represented by each such Warrant had such Fundamental Transaction reorganization, reclassification, consolidation, merger or sale not taken place, and in any such case appropriate provision provisions shall be made with respect to the rights and interests interest of the holder of each Warrantholder Warrant then outstanding to the end that the provisions hereof thereof (including, including without limitation, provision limitation provisions for adjustment of the Warrant PricePrice and of the number of shares purchasable upon the exercise of each Warrant then outstanding) shall thereafter be applicable, applicable as nearly equivalent as may be practicable in relation to any sharesshares of stock, securities or assets thereafter deliverable upon the exercise hereof. The of each Warrant.
H. No adjustment of the Warrant Price shall be made in connection with the issuance or sale of shares of Common Stock issuable pursuant to currently outstanding options and warrants granted to officers, directors, employees, advisory directors, or affiliates of the Company.
I. Whenever the Warrant Price is adjusted as herein provided, the Company shall not effect any such Fundamental Transaction unless prior to or simultaneously (a) forthwith file with the consummation thereof Warrant Agent a certificate signed by the successor company (if other than Chairman of the Company) resulting from such consolidation, amalgamation or merger, Board or the company purchasing President or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address a Vice President of the Warrantholder appearing on Company and by the books Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, sharesshowing in detail the facts requiring such adjustment and the Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants after such adjustment and (b) cause a notice stating that such adjustment has been effected and stating the adjusted Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants to be published at least once a week for two consecutive weeks in a newspaper of general circulation in Dallas, securities Texas and in New York, New York. The Company, at its option, may cause a copy of such notice to be sent by first class mail, postage prepaid, to each registered holder of Warrants at his address appearing on the Warrant register. The Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours. The Warrant Agent shall not at any time be under any duty or assets asresponsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making such adjustment.
J. The Company may retain a firm of independent certified public accountants of recognized standing (which may be the firm that regularly examines the financial statements of the Company) selected by the Board of Directors of the Company or the Executive Committee of said Board and approved by the Warrant Agent, to make any computation required under this ss.8, and a certificate signed by such firm shall be conclusive evidence of the correctness of any computation made under this ss.8.
K. In case at any time conditions shall arise by reason of action taken by the Company which, in accordance with the foregoing provisionsopinion of the Board of Directors of the Company, the Warrantholder may be entitled to purchase, and are not adequately covered by the other obligations under this Warrant. The provisions of this paragraph Agreement and which might materially and adversely affect the rights of the holders of the Warrants, or in case at any time any such conditions are expected to arise by reason of any action contemplated by the Company, the Board of Directors of the Company shall appoint a firm of independent certified public accountants of recognized standing (cwhich may be the firm that regularly examines the financial statements of the Company), who shall give their opinion as to the adjustment, if any (not inconsistent with the standards established in this ss.8), of the Warrant Price and the number of shares of Common Stock purchasable pursuant hereto (including, if necessary, any adjustment as to the property which may be purchasable in lieu thereof upon exercise of the Warrants) which is, or would be, required to preserve without dilution the rights of the holders of the Warrants. The Board of Directors of the Company shall similarlymake the adjustment recommended forthwith upon the receipt of such opinion or the taking of any such action contemplated, as the case may be; provided, however, that no adjustment of the Warrant Price shall be made which in the opinion of the accountant or firm of accountants giving the aforesaid opinion would result in an increase of the Warrant Price to more than the Warrant Price then in effect except as otherwise provided in subsection E of this ss.8.
Appears in 1 contract
Samples: Warrant Agreement (Butterwings Entertainment Group Inc)
Warrant Price; Adjustments. Subject and pursuant to the provisions of this Section 8, the The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, time as set forth hereinafter.follows:
(aA) On each If the Issuer shall issue, after the date this Warrant is exercised pursuant upon which any shares of Preferred Stock were first issued (the “Purchase Date”), any Additional Shares of Common Stock (as defined below) without consideration or for a consideration per share less than the Conversion Price for the Preferred Stock in effect immediately prior to the terms hereofissuance of such Additional Shares of Common Stock, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If the Company shall, at any time or from time to time while for this Warrant is outstanding, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant effect immediately prior to each such issuance shall (but not includingexcept as otherwise provided in this Section 4(d)(i)) the date on which be adjusted concurrently with such change shall become effective issuance to a price determined by multiplying such Warrant Price by a fraction, the numerator of which is shall be the number of shares of Common Shares Stock outstanding and deemed issued pursuant to Section 4(d)(i)(E) immediately after giving effect prior to such change issuance plus the number of shares of Common Stock that the aggregate consideration received by this Issuer for such issuance would purchase at such Conversion Price; and the denominator of which shall be the number of shares of Common Shares Stock outstanding and deemed issued pursuant to Section 4(d)(i)(E) immediately prior to such change. Such adjustments shall be made successively whenever any event listed above shall occurissuance plus the number of shares of such Additional Shares of Common Stock.
(cB) If any (i) capital reorganization or reclassification of the share capital of the Company, (ii) consolidation, amalgamation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), shall be effected, then, as a condition of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions herein specified and in lieu of the Warrant Shares immediately theretofore issuable upon exercise of the Warrant, the highest amount of such shares, securities or assets as would have been issuable or payable with respect to or in exchange for a number of Warrant Shares equal to the number of Warrant Shares immediately theretofore issuable upon exercise of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for No adjustment of the Warrant PricePrice pursuant to this Section 4(d) shall thereafter be applicablemade in an amount less than one cent per share, as nearly equivalent as may provided that any adjustments that are not required to be practicable made by reason of this sentence shall be carried forward and shall be either taken into account in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company shall not effect any such Fundamental Transaction unless subsequent adjustment made prior to or simultaneously with one (1) year from the consummation thereof date of the successor company (if other than event giving rise to the Company) resulting from such consolidation, amalgamation or mergeradjustment being carried forward, or shall be made at the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume end of one (1) year from the obligation to deliver date of the event giving rise to the Warrantholder, at the last address of the Warrantholder appearing on the books of the Company, shares, securities or assets as, in accordance with the foregoing provisions, the Warrantholder may be entitled to purchase, and the other obligations under this Warrant. The provisions of this paragraph (c) shall similarlyadjustment being
Appears in 1 contract
Warrant Price; Adjustments. Subject A. The price at which Common Stock shall be purchasable upon exercise of Warrants at any time after the Common Stock and Warrants become separately tradable until ____________, 2001 (hereinafter called the "Warrant Price") shall be $_____ per share of Common Stock or, if adjusted as provided in this Section, shall be such price as so adjusted.
B. The Warrant Price shall be subject to adjustment from time to time as follows:
(1) Except as hereinafter provided, in case the Company shall at any time or from time to time after the date hereof issue any additional shares of Common Stock for a consideration per share less than the Warrant Price in effect immediately prior to the issuance of such additional shares, or without consideration, then, upon each such issuance, the Warrant Price in effect immediately prior to the issuance of such additional shares shall forthwith be reduced to a price (calculated to the nearest full cent) determined by dividing:
(a) An amount equal to (i) the total number of shares of Common Stock outstanding immediately prior to such issuance multiplied by the Warrant Price in effect immediately prior to such issuance, plus (ii) the consideration. if any. received by the Company upon such issuance, by
(b) The total number of shares of Common Stock outstanding immediately after the issuance of such additional shares.
(2) The Company shall not be required to make any such adjustment of the Warrant Price in accordance with the foregoing if the amount of such adjustment shall be less than $0.05 (adjustment will be made when cumulative adjustment equals or exceeds $0.05) but in such case the Company shall maintain a cumulative record of the Warrant Price as it would have been in the absence of this provision (the "Constructive Warrant Price"), and for the purpose of computing a new Warrant Price after the next subsequent issuance of additional shares (but not for the purpose of determining whether an adjustment thereof is required under the terms of this paragraph) the constructive Warrant Price shall be deemed to be the Warrant Price in effect immediately prior to such issuance.
(3) For the purpose of this Section 8 the following provisions shall also be applicable:
(a) In the case of the issuance of additional shares of Common Stock for cash, the consideration received by the Company therefor shall be deemed to be the net cash proceeds received by the Company for such shares before deducting any commissions or other expenses paid or incurred by the Company for any underwriting of, or otherwise in connection with, the issuance of such shares.
(b) In case of the issuance (otherwise than upon conversion or exchange of shares of Common stock) of additional shares of Common Stock for a consideration other than cash or a consideration a part of which shall be other than cash, the amount of the consideration other than cash received by the Company for such shares shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company, as of the date of the adoption of the resolution of said Board, providing for the issuance of such shares for consideration other than cash or for consideration a part of which shall be other than cash, such fair value to include goodwill and other intangibles to the extent determined in good faith by the Board.
(c) In case of the issuance by the Company after the date hereof of any security (other than the Warrants) that is convertible into shares of Common Stock or of any warrants, rights or options to purchase shares of Common stock (except the options and warrants referred to in subsection H of this Section 8), (i) the Company shall be deemed (as provided in subparagraph (e) below) to have issued the maximum number of shares of Common Stock deliverable upon the exercise of such conversion privileges or warrants, rights or options, and (ii) the consideration therefor shall be deemed to be the consideration received by the Company for such convertible securities or for such warrants, rights or options, as the case may be, before deducting therefrom any expenses or commissions incurred or paid by the Company for any underwriting of, or otherwise in connection with, the issuance of such convertible security or warrants, rights or options, plus (A) the minimum consideration or adjustment payment to be received by the Company in connection with such conversion, or (B) the minimum price at which shares of Common Stock are to be delivered upon exercise of such warrants, rights or options or, if no minimum price is specified and such shares are to be delivered at an option price related to the market value of the subject shares, an option price bearing the same relation to the market value of the subject shares at the time such warrants, rights or options were granted; provided that as to such options such further adjustment as shall be necessary on the basis of the actual option price at the time of exercise shall be made at such time if the actual option price is less than the aforesaid assumed option price. No further adjustment of the Warrant Price shall be made as a result of the actual issuance of the shares of Common Stock referred to in this subparagraph (c). on the expiration of such warrants, rights or options, or the termination of such right to convert, the Warrant Price shall be readjusted to such Warrant Price as would have pertained had the adjustments made upon the issuance of such warrants, rights, options or convertible securities been made upon the basis of the delivery of only the number of shares of Common Stock actually delivered upon the exercise of such warrants, rights or options or upon the conversion of such securities.
(d) For the purposes hereof, any additional shares of Common Stock issued as a stock dividend shall be deemed to have been issued for no consideration.
(e) The number of shares of Common Stock at any time outstanding shall include the aggregate number of shares deliverable in respect of the convertible securities, rights and options referred to in subparagraph (C) of this paragraph; provided that with respect to shares referred to in clause (i) of subparagraph (c), to the extent that such warrants, options, rights or conversion privileges are not exercised, such shares shall be deemed to be outstanding only until the expiration dates of the warrants, rights, options or conversion privileges or the prior cancellation thereof.
C. In case the Company shall at any time subdivide its outstanding shares of Common stock into a greater number of shares, the Warrant Price in effect immediately prior to such subdivision shall be proportionately reduced and, in case the outstanding shares of the Common Stock of the Company shall be combined into a smaller number of shares, the Warrant Price in effect immediately prior to such combination shall be proportionately increased.
D. Upon each adjustment of the Warrant Price pursuant to the provisions of this Section 8, the Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, as set forth hereinafter.
(a) On each date this Warrant is exercised pursuant to the terms hereof, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If the Company shall, at any time or from time to time while this Warrant is outstanding, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which issuable upon the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this each Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately Price in effect prior to (but not including) the date on which such change shall become effective adjustment by a fraction, the numerator of which is shall be the number of shares of Common Shares outstanding immediately after giving Stock covered by the warrant and dividing the product so obtained by the adjusted Warrant Price.
E. Except upon consolidation or reclassification of the shares of Common Stock of the Company as provided for in subsection (c) hereof and except for readjustment of the Warrant Price upon expiration of warrants, rights or options as provided for in subparagraph (c) of paragraph 3 of subsection (B) hereof, the Warrant Price in effect to such at any time may not be adjusted upward or increased in any manner whatsoever.
F. Irrespective of any adjustment or change and in the denominator of which shall be warrant Price or the number of shares of Common Shares outstanding immediately prior Stock actually purchasable under the several Warrants, the Warrants theretofore and thereafter issued may continue to such change. Such adjustments shall be made successively whenever any event listed above shall occurexpress the Warrant Price per share and the number of shares purchasable thereunder as the Warrant Price per share and the number of shares purchasable were expressed in the Warrants when initially issued.
(c) G. If any (i) capital reorganization or reclassification of the share capital stock of the Company, Company (iiother than a distribution of stock in accordance with Section 10(B)) consolidation, amalgamation or consolidation or merger of the Company with another company in which corporation or the Company is not the survivor, (iii) sale, transfer or other disposition sale of all or substantially all of the Company’s its assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), corporation shall be effected, then, as a condition of such Fundamental Transactionreorganization, reclassification, consolidation, merger or Bale, lawful and adequate provision shall be made whereby the holder of each Warrantholder Warrant then outstanding shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions specified herein specified and in the Warrants and in lieu of the Warrant Shares shares of the common Stock of the Company immediately theretofore issuable purchasable and receivable upon the exercise of the Warrantrights represented by each such warrant, the highest amount such shares of such sharesstock, securities or assets as would have been issuable may be issued or payable with respect to or in exchange for a number of Warrant Shares outstanding shares of such Common Stock equal to the number of Warrant Shares shares of such Common stock immediately theretofore issuable purchasable and receivable upon the exercise of the Warrant, rights represented by each such Warrant had such Fundamental Transaction reorganization, reclassification, consolidation, merger or sale not taken place, and in any such case appropriate provision provisions shall be made with respect to the rights and interests interest of the holder of each Warrantholder Warrant then outstanding to the end that the provisions hereof thereof (including, including without limitation, provision limitation provisions for adjustment of the Warrant PricePrice and of the number of shares purchasable upon the exercise of each Warrant then outstanding) shall thereafter be applicable, applicable as nearly equivalent as may be practicable in relation to any sharesshares of stock, securities or assets thereafter deliverable upon the exercise hereof. The of each Warrant.
H. No adjustment of the Warrant Price shall be made in connection with the issuance or sale of shares of Common Stock issuable pursuant to currently outstanding options and warrants granted to officers, directors, employees, advisory directors, or affiliates of the Company.
I. Whenever the Warrant Price is adjusted as herein provided, the Company shall not effect any such Fundamental Transaction unless prior to or simultaneously (a) forthwith file with the consummation thereof Warrant Agent a certificate signed by the successor company (if other than Chairman of the Company) resulting from such consolidation, amalgamation or merger, Board or the company purchasing President or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address a Vice President of the Warrantholder appearing on Company and by the books Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, sharesshowing in detail the facts requiring such adjustment and the Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants after such adjustment and (b) cause a notice stating that such adjustment has been effected and stating the adjusted warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants to be published at least once a week for two consecutive weeks in a newspaper of general circulation in Dallas, Texas and in New York, New York. The Company, at its option, may cause a copy of such notice to be sent by first class mail, postage prepaid, to each registered holder of Warrants at his address appearing on the Warrant register. The Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making such adjustment.
J. The Company may retain a firm of independent certified public accountants of recognized standing (which may be the firm that regularly examines the financial statements of the Company) selected by the Board of Directors of the Company or the Executive Committee of said Board and approved by the Warrant Agent, to make any computation required under this Section 8, and a certificate signed by such firm shall be conclusive evidence of the correctness of any computation made under this Section 8.
K. The Company may, from time to time and to the extent permitted by law, reduce the exercise price of the Warrants by any amount for a period of not less than 20 days. If the Company so reduces the exercise price of the Warrants, it will give not less than 15 days' notice of such decrease, which notice may be in the form of a press release, and shall take such other steps as may be required under applicable law in connection with any offers or sales of securities or assets asat the reduced price.
L. In case at any time conditions shall arise by reason of action taken by the Company which, in accordance with the foregoing provisionsopinion of the Board of Directors of the Company, the Warrantholder may be entitled to purchase, and are not adequately covered by the other obligations under this Warrant. The provisions of this paragraph Agreement and which might materially and adversely affect the rights of the holders of the Warrants, or in case at any time any such conditions are expected to arise by reason of any action contemplated by the Company, the Board of Directors of the Company shall appoint a firm of independent certified public accountants of recognized standing (cwhich may be the firm that regularly examines the financial statements of the Company), who shall give their opinion as to the adjustment, if any (not inconsistent with the standards established in this Section 8), of the Warrant Price and the number of shares of Common Stock purchasable pursuant hereto (including, if necessary, any adjustment as to the property which may be purchasable in lieu thereof upon exercise of the Warrants) which is, or would be, required to preserve without dilution the rights of the holders of the Warrants. The Board of Directors of the Company shall similarlymake the adjustment recommended forthwith upon the receipt of such opinion or the taking of any such action contemplated, as the case may be; provided, however, that no adjustment of the Warrant Price shall be made which in the opinion of the accountant or firm of accountants giving the aforesaid opinion would result in an increase of the Warrant Price to more than the Warrant Price then in effect except as otherwise provided in subsection E of this Section 8.
Appears in 1 contract
Warrant Price; Adjustments. Subject A. The warrant price per share at which Shares shall be purchasable upon exercise of Warrants (herein called the "warrant exercise price") to and pursuant including the expiration date (unless the expiration date is extended as provided below in this Section 9A) shall be $___ per share, or, if adjusted as provided in this Section, shall be such price as so adjusted. The Warrants will not be exercisable prior to [the close of business on the date of any initial issuance thereof] [___] and will expire at 5:00 p.m., New York City time, on the expiration date; provided that the Company reserves the right to, and may, in its sole discretion, at any time and from time to time, at such time or times as the Company so determines, extend the expiration date of the Warrants for such periods of time as it chooses; further provided that in no case may the expiration date of the Warrants (as extended) be extended beyond five years from the expiration date set forth above. Whenever the expiration date of the Warrants is so extended, the Company shall at least 20 days prior to the then expiration date cause to be mailed to the Warrant Agent and the registered holders of the Warrants in accordance with the provisions of this Section 817 hereof a notice stating that the expiration date has been extended and setting forth the new expiration date.
B. The above provision is, however, subject to the following:
(1) The warrant purchase price, the number of Shares purchasable upon exercise of each Warrant Price and the number of Warrants outstanding shall be determinedsubject to adjustment as follows:
(a) In case the Company shall at any time after the date of this Agreement (i) pay a dividend, and or make a distribution, on the Warrant Price and Common Stock which is payable in shares of its capital stock (whether shares of Common Stock or of capital stock of any other class), (ii) subdivide or reclassify its outstanding shares of Common Stock into a greater number of securities (including shares of Common Stock), or (iii) combine or reclassify its outstanding shares of Common Stock into a smaller number of shares (including shares of Common Stock), the number of shares purchasable upon exercise of each Warrant Shares subject immediately prior to the occurrence of such event shall be adjusted so that the holder of each Warrant shall be entitled to receive upon payment of the warrant purchase price the aggregate number of shares of the Company which, if such Warrant had been exercised immediately prior to the occurrence of such event, such holder would have owned or have been entitled to receive immediately after the occurrence of such event. An adjustment made pursuant to this subparagraph (a) shall become effective immediately after the record date in the case of a dividend and shall become effective immediately after the effective date in the case of a subdivision or combination. If, as a result of an adjustment made pursuant to this subparagraph (a), the holder of any Warrant thereafter exercised shall become entitled to receive shares of two or more classes of capital stock of the Company, the Board of Directors of the Company (whose determination shall be conclusive) shall determine the allocation between or among shares of such classes of capital stock. In the event that at any time, as a result of an adjustment made pursuant to this subparagraph (a), the holder of any Warrant thereafter exercised shall become entitled to receive any shares or other securities of the Company other than shares of Common Stock, thereafter the number of such other shares so received upon exercise of any Warrant shall be subject to adjustment from time to time, time in a manner and on terms as set forth hereinafter.
(a) On each date this Warrant is exercised pursuant nearly equivalent as practicable to the provisions with respect to the shares of Common Stock contained in this paragraph, and other provisions of this paragraph 9B(1) with respect to the shares of Common Stock shall apply on like terms hereof, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as to any such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”)other shares or other securities.
(b) If [In case the Company shall, at any time shall fix a record date for the issuance of rights or from time warrants to time while this Warrant is outstanding, pay a dividend or make a distribution on all holders of its Common Shares Stock entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Stock at a price per share less than the current market price per share of Common Stock (as defined in Common Sharessubparagraph (e) below) at such record date, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant warrant purchase price shall be adjusted determined by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant warrant purchase price in effect immediately prior to (but not including) the such record date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Shares of Common Shares Stock outstanding immediately after giving effect to on such change and the denominator of which shall be record date plus the number of Shares of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever any event listed above shall occur.
(c) If any (i) capital reorganization or reclassification Stock which the aggregate offering price of the share capital of the Company, (ii) consolidation, amalgamation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), shall be effected, then, as a condition of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions herein specified and in lieu of the Warrant Shares immediately theretofore issuable upon exercise of the Warrant, the highest amount of such shares, securities or assets as would have been issuable or payable with respect to or in exchange for a total number of Warrant Shares equal to the number of Warrant Shares immediately theretofore issuable upon exercise of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, so offered would purchase at the last address of the Warrantholder appearing on the books of the Company, shares, securities or assets as, in accordance with the foregoing provisions, the Warrantholder may be entitled to purchase, and the other obligations under this Warrant. The provisions of this paragraph (c) shall similarlysuch
Appears in 1 contract
Samples: Common Stock Warrant Agreement (Indymac Capital Trust Iv)
Warrant Price; Adjustments. Subject and (a) The price at which Common Stock shall be purchasable upon exercise of the Warrants (the "Warrant Price") shall be $10.00 per share of Common Stock or, if adjusted as provided in this section, shall be such price as so adjusted.
(b) In case the Company shall at any time subdivide its outstanding shares of Common Stock into a greater number of shares or effect a stock dividend or stock split, the Warrant Price in effect immediately prior to such subdivision, dividend, or split shall be proportionately reduced and, in case the outstanding shares of the Common Stock of the Company shall be combined into a smaller number of shares (through a reverse stock split or otherwise), the Warrant Price in effect immediately prior to such combination shall be proportionately increased.
(c) Upon each adjustment of the Warrant Price pursuant to the provisions of this Section 89, the number of shares issuable upon the exercise of each Warrant shall be adjusted to a number of shares equal to the Warrant Price shall be determined, in effect prior to the adjustment multiplied by the number of shares of Common Stock covered by the Warrant and dividing the product so obtained by the adjusted Warrant Price.
(d) Irrespective of any adjustment or change in the Warrant Price and or the number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, as set forth hereinafter.
(a) On each date this Warrant is exercised shares of Common Stock actually purchasable pursuant to the terms hereofWarrants, the Warrants theretofore and thereafter issued may continue to express the Warrant Price per share and the number of shares purchasable thereunder as the Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount Price per share may be adjusted pursuant to this Section 8, and the “Warrant Price”)number of shares purchasable were expressed in the Warrants when initially issued.
(b) If the Company shall, at any time or from time to time while this Warrant is outstanding, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever any event listed above shall occur.
(ce) If any (i) capital reorganization or reclassification of the share capital shares of Common Stock of the Company (other than a stock dividend or stock split as set forth in Section 9(b)) shall be effected, then, at the option of the Company, adequate provision may be made whereby the holder of each Warrant then outstanding will thereafter have the right to purchase and receive on exercise of such Warrant such shares of stock, securities, or assets as may be issued or payable with respect to or in exchange for that number of outstanding shares of Common Stock equal to the number of shares of such Common Stock immediately theretofore purchasable and receivable upon the exercise of the rights represented by each such Warrant had such reorganization or reclassification not taken place.
(iif) consolidation, amalgamation In the event of a consolidation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), shall be effected, thencorporation, as a condition of to such Fundamental Transactionconsolidation or merger, lawful and adequate provision shall be made whereby the holder of each Warrantholder Warrant then outstanding shall thereafter solely have the right to purchase and receive upon the basis and upon the terms and conditions specified herein specified and in the Warrants, and in lieu of the Warrant Shares shares of Common Stock of the Company immediately theretofore issuable purchasable and receivable upon the exercise of the rights represented by each such Warrant, the highest amount such shares of such sharesstock, securities securities, or assets as would have been issuable may be issued or payable with respect to or in exchange for a that number of Warrant Shares shares of Common Stock equal to the number of Warrant Shares shares of Common Stock immediately theretofore issuable purchasable and receivable upon the exercise of the Warrant, rights represented by each such Warrant had such Fundamental Transaction consolidation or merger not taken place, and in any such case appropriate provision provisions shall be made with respect to the rights and interests of the holder of each Warrantholder Warrant then outstanding to the end that the provisions hereof (including, including without limitation, provision limitation provisions for adjustment of the Warrant PricePrice and of the number of shares purchasable upon the exercise of each Warrant then outstanding) shall thereafter be applicable, as nearly equivalent as may might be practicable in relation to any sharesshares of stock, securities securities, or assets thereafter deliverable upon the exercise hereofof each Warrant.
(g) The Company may, at any time, in its sole discretion reduce the Warrant Price and such price reduction will be in effect for a minimum period of 10 business days or such other period as may be required by applicable law or regulation.
(h) Whenever the Warrant Price is adjusted as herein provided, the Company shall:
(i) File with the Warrant Agent a certificate signed by the Chairman of the Board or the President or Vice President of the Company and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company:
(A) Stating that the Warrant Price has been adjusted and the adjusted Warrant Price; and
(B) Showing in detail the facts requiring such adjustment and the adjusted Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrant after such adjustment; and
(ii) Cause a notice stating that such adjustment has been effected and stating the adjusted Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants to be sent by first class mail, postage prepaid, to each registered holder of Warrants at his address appearing on the Warrant Register. The Company Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during the Warrant Agent's regular business hours. The Warrant Agent shall not effect at any time be under any duty or responsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making such Fundamental Transaction unless prior adjustment. In determining whether any adjustment to or simultaneously with the consummation thereof Warrant Price is appropriate, the successor company Warrant Agent shall be entitled to rely on the certificate of the Company referred to in this Section 9(h).
(if other than i) The Company may retain a firm of independent certified public accountants of recognized standing (which may be the firm that regularly examines the financial statements of the Company) resulting from such consolidation, amalgamation or merger, or selected by the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address Board of Directors of the Warrantholder appearing on Company or a committee thereof and approved by the books Warrant Agent, to make any computation required under this Section 9, and a certificate signed by such firm shall be conclusive evidence of the Company, shares, securities or assets as, in accordance with the foregoing provisions, the Warrantholder may be entitled to purchase, and the other obligations correctness of any computation made under this Warrant. The provisions of this paragraph (c) shall similarlySection 9.
Appears in 1 contract
Warrant Price; Adjustments. Subject and pursuant to (a) The warrant price at which Common Stock shall be purchasable upon the provisions exercise of the Warrants shall be $5.50 per share or after adjustment, as provided in this Section 8Section, shall be such price as so adjusted (the "Warrant Price").
(b) The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to timetime as follows:
(i) In case the Company shall at any time after the date hereof pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, as set forth hereinafterthen upon such dividend or distribution the Warrant Price in effect immediately prior to such dividend or distribution shall forthwith be reduced to a price determined by dividing:
(A) an amount equal to the total number of shares of Common Stock outstanding immediately prior to such dividend or distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by
(B) the total number of shares of Common Stock outstanding immediately after such issuance or sale. For the purposes of any computation to be made in accordance with the provisions of this Section 9(b)(i), the following provisions shall be applicable: Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution.
(aii) On each date this Warrant is exercised pursuant to In case the terms hereofCompany shall at any time subdivide or combine the outstanding Common Stock, the Warrant Price per shall forthwith be proportionately decreased in the case of subdivision or increased in the case of combination to the nearest one cent. Any such adjustment shall become effective at the time such subdivision or combination shall become effective.
(iii) Within a reasonable time after the close of each quarterly fiscal period of the Company during which the Warrant Share Price has been adjusted as herein provided, the Company shall:
(A) file with the Warrant Agent a cer- tificate signed by the Chief Executive Officer, President or Vice President of the Company and by the Treasurer or Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, showing in detail the facts requiring all such adjustments occurring during such period and the Warrant Price after each such adjustment; and
(B) the Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours, and the Warrant Agent may conclusively rely upon the latest certificate furnished to it hereunder. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making any such adjustment, or with respect to the nature or extent of the property or securities deliverable hereunder. In the absence of a certificate having been furnished, the Warrant Agent may conclusively rely upon the provisions of the Warrants with respect to the Common Stock deliverable upon the exercise of the Warrants and the applicable Warrant Price thereof.
(iv) Notwithstanding anything contained herein to the contrary, no adjustment of the Warrant Price shall be determined as set forth made if the amount of such adjustment shall be less than $.05, but in Exhibit A such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to not less than $.02.
(as v) In the event that the number of outstanding shares of Common Stock is increased by a stock dividend payable in Common Stock or by a subdivision of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to Subsection (b) of this Section by reason of such dollar amount per share may dividend or subdivision, the number of shares of Common Stock issuable upon the exercise of each Warrant shall be increased in proportion to such increase in outstanding shares. In the event that the number of shares of Common Stock outstanding is decreased by a combination of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to this Section 89(b) by reason of such combination, the “number of shares of Common Stock issuable upon the exercise of each Warrant Price”)shall be decreased in proportion to such decrease in the outstanding shares of Common Stock.
(bvi) If In case of any reorganization or reclassification of the outstanding Common Stock (other than a change in par value, or from par value to no par value, or as a result of a subdivision or combination), or in case of any consolidation of the Company shallwith, at any time or from time to time while this Warrant is outstandingmerger of the Company into, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital another corporation (including any such reclassification in connection with other than a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but corporation and which does not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever result in any event listed above shall occur.
(c) If any (i) capital reorganization or reclassification of the share capital of the Company, (ii) consolidation, amalgamation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”Stock), shall be effectedor in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, then, as a condition the holder of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder Warrant then outstanding shall thereafter have the right to purchase the kind and receive amount of shares of Common Stock and other securities and property receivable upon the basis and upon the terms and conditions herein specified and in lieu such reorganization, reclassification, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock which the holder of such Warrant Shares immediately theretofore issuable shall then be entitled to purchase; such adjustments shall apply with respect to all such changes occurring between the date of this Warrant Agreement and the date of exercise of such Warrant.
(vii) Subject to the provisions of this Section 9, in case the Company shall, at any time prior to the exercise of the Warrants, make any distribution of its assets to holders of its Common Stock as a liquidating or a partial liquidating dividend, then the holder of Warrants who exercises its Warrants after the record date for the determination of those holders of Common Stock entitled to such distribution of assets as a liquidating or partial liquidating dividend shall be entitled to receive for the Warrant Price per Warrant, in addition to each share of Common Stock, the amount of such distribution (or, at the option of the Company, a sum equal to the value of any such assets at the time of such distribution as determined by the Board of Directors of the Company in good faith), which would have been payable to such holder had he been the holder of record of the Common Stock receivable upon exercise of its Warrant on the Warrantrecord date for the determination of those entitled to such distribution.
(viii) In case of the dissolution, liquidation or winding up of the highest amount Company, all rights under the Warrants shall terminate on a date fixed by the Company, such date to be no earlier than ten (10) days prior to the effectiveness of such sharesdissolution, securities liquidation or assets as would have been issuable or payable with respect winding up and not later than five (5) days prior to or in exchange for a number such effectiveness. Notice of Warrant Shares equal such termination of purchase rights shall be given to the number of Warrant Shares immediately theretofore issuable upon exercise last registered holder of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) shall thereafter be applicableWarrants, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company same shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing appear on the books of the Company maintained by the Warrant Agent, by registered mail at least thirty (30) days prior to such termination date.
(ix) In case the Company shall, at any time prior to the expiration of the Warrants and prior to the exercise thereof, offer to the holders of its Common Stock any rights to subscribe for additional shares of any class of the Company, shares, securities then the Company shall give written notice thereof to the last registered holder thereof not less than thirty (30) days prior to the date on which the books of the Company are closed or assets as, in accordance with a record date is fixed for the foregoing provisions, determination of the Warrantholder may be stockholders entitled to purchase, such subscription rights. Such notice shall specify the date as to which the books shall be closed or record date fixed with respect to such offer of subscription and the other obligations under this Warrant. The right of the holder thereof to participate in such offer of subscription shall terminate if the Warrant shall not be exercised on or before the date of such closing of the books or such record date.
(x) Any adjustment pursuant to the aforesaid provisions of this paragraph Section 9 shall be made on the basis of the number of shares of Common Stock which the holder thereof would have been entitled to acquire by the exercise of the Warrant immediately prior to the event giving rise to such adjustment.
(cxi) Irrespective of any adjustments in the Warrant Price or the number or kind of shares purchasable upon exercise of the Warrants, Warrants previously or thereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Warrants initially issuable pursuant to this Warrant Agreement.
(xii) The Company may retain a firm of independent public accountants (who may be any such firm regularly employed by the Company) to make any computation required under this Section 9, and any certificate setting forth such computation signed by such firm shall similarlybe conclusive evidence of the correctness of any computation made under this Section 9.
(xiii) If at any time, as a result of an adjustment made pursuant to Section 9(b)(vi) above, the holders of a Warrant or Warrants shall become entitled to purchase any securities other than shares of Common Stock, thereafter the number of such securities so purchasable upon exercise of each Warrant and the Warrant Price for such shares shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in Sections 9(b)(ii) through (v).
Appears in 1 contract
Warrant Price; Adjustments. Subject A. The price at which Common Stock shall be purchasable upon exercise of Warrants at any time after the Common Stock and Warrants become separately tradable until ____________, 2003 (hereinafter called the "Warrant Price") shall be $_____ per share of Common Stock or, if adjusted as provided in this Section, shall be such price as so adjusted.
B. The Warrant Price shall be subject to adjustment from time to time as follows:
(1) Except as hereinafter provided, in case the Company shall at any time or from time to time after the date hereof issue any additional shares of Common Stock for a consideration per share less than the Warrant Price in effect immediately prior to the issuance of such additional shares, or without consideration, then, upon each such issuance, the Warrant Price in effect immediately prior to the issuance of such additional shares shall forthwith be reduced to a price (calculated to the nearest full cent) determined by dividing:
(a) An amount equal to (i) the total number of shares of Common Stock outstanding immediately prior to such issuance multiplied by the Warrant Price in effect immediately prior to such issuance, plus (ii) the consideration. if any. received by the Company upon such issuance, by
(b) The total number of shares of Common Stock outstanding immediately after the issuance of such additional shares.
(2) The Company shall not be required to make any such adjustment of the Warrant Price in accordance with the foregoing if the amount of such adjustment shall be less than $0.05 (adjustment will be made when cumulative adjustment equals or exceeds $0.05) but in such case the Company shall maintain a cumulative record of the Warrant Price as it would have been in the absence of this provision (the "Constructive Warrant Price"), and for the purpose of computing a new Warrant Price after the next subsequent issuance of additional shares (but not for the purpose of determining whether an adjustment thereof is required under the terms of this paragraph) the constructive Warrant Price shall be deemed to be the Warrant Price in effect immediately prior to such issuance.
(3) For the purpose of this Section 8 the following provisions shall also be applicable:
(a) In the case of the issuance of additional shares of Common Stock for cash, the consideration received by the Company therefor shall be deemed to be the net cash proceeds received by the Company for such shares before deducting any commissions or other expenses paid or incurred by the Company for any underwriting of, or otherwise in connection with, the issuance of such shares.
(b) In case of the issuance (otherwise than upon conversion or exchange of shares of Common stock) of additional shares of Common Stock for a consideration other than cash or a consideration a part of which shall be other than cash, the amount of the consideration other than cash received by the Company for such shares shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company, as of the date of the adoption of the resolution of said Board, providing for the issuance of such shares for consideration other than cash or for consideration a part of which shall be other than cash, such fair value to include goodwill and other intangibles to the extent determined in good faith by the Board.
(c) In case of the issuance by the Company after the date hereof of any security (other than the Warrants) that is convertible into shares of Common Stock or of any warrants, rights or options to purchase shares of Common stock (except the options and warrants referred to in subsection H of this Section 8), (i) the Company shall be deemed (as provided in subparagraph (e) below) to have issued the maximum number of shares of Common Stock deliverable upon the exercise of such conversion privileges or warrants, rights or options, and (ii) the consideration therefor shall be deemed to be the consideration received by the Company for such convertible securities or for such warrants, rights or options, as the case may be, before deducting therefrom any expenses or commissions incurred or paid by the Company for any underwriting of, or otherwise in connection with, the issuance of such convertible security or warrants, rights or options, plus (A) the minimum consideration or adjustment payment to be received by the Company in connection with such conversion, or (B) the minimum price at which shares of Common Stock are to be delivered upon exercise of such warrants, rights or options or, if no minimum price is specified and such shares are to be delivered at an option price related to the market value of the subject shares, an option price bearing the same relation to the market value of the subject shares at the time such warrants, rights or options were granted; provided that as to such options such further adjustment as shall be necessary on the basis of the actual option price at the time of exercise shall be made at such time if the actual option price is less than the aforesaid assumed option price. No further adjustment of the Warrant Price shall be made as a result of the actual issuance of the shares of Common Stock referred to in this subparagraph (c). on the expiration of such warrants, rights or options, or the termination of such right to convert, the Warrant Price shall be readjusted to such Warrant Price as would have pertained had the adjustments made upon the issuance of such warrants, rights, options or convertible securities been made upon the basis of the delivery of only the number of shares of Common Stock actually delivered upon the exercise of such warrants, rights or options or upon the conversion of such securities.
(d) For the purposes hereof, any additional shares of Common Stock issued as a stock dividend shall be deemed to have been issued for no consideration.
(e) The number of shares of Common Stock at any time outstanding shall include the aggregate number of shares deliverable in respect of the convertible securities, rights and options referred to in subparagraph (C) of this paragraph; provided that with respect to shares referred to in clause (i) of subparagraph (c), to the extent that such warrants, options, rights or conversion privileges are not exercised, such shares shall be deemed to be outstanding only until the expiration dates of the warrants, rights, options or conversion privileges or the prior cancellation thereof.
C. In case the Company shall at any time subdivide its outstanding shares of Common stock into a greater number of shares, the Warrant Price in effect immediately prior to such subdivision shall be proportionately reduced and, in case the outstanding shares of the Common Stock of the Company shall be combined into a smaller number of shares, the Warrant Price in effect immediately prior to such combination shall be proportionately increased.
D. Upon each adjustment of the Warrant Price pursuant to the provisions of this Section 8, the Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, as set forth hereinafter.
(a) On each date this Warrant is exercised pursuant to the terms hereof, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If the Company shall, at any time or from time to time while this Warrant is outstanding, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which issuable upon the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this each Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately Price in effect prior to (but not including) the date on which such change shall become effective adjustment by a fraction, the numerator of which is shall be the number of shares of Common Shares outstanding immediately after giving Stock covered by the warrant and dividing the product so obtained by the adjusted Warrant Price.
E. Except upon consolidation or reclassification of the shares of Common Stock of the Company as provided for in subsection (c) hereof and except for readjustment of the Warrant Price upon expiration of warrants, rights or options as provided for in subparagraph (c) of paragraph 3 of subsection (B) hereof, the Warrant Price in effect to such at any time may not be adjusted upward or increased in any manner whatsoever.
F. Irrespective of any adjustment or change and in the denominator of which shall be warrant Price or the number of shares of Common Shares outstanding immediately prior Stock actually purchasable under the several Warrants, the Warrants theretofore and thereafter issued may continue to such change. Such adjustments shall be made successively whenever any event listed above shall occurexpress the Warrant Price per share and the number of shares purchasable thereunder as the Warrant Price per share and the number of shares purchasable were expressed in the Warrants when initially issued.
(c) G. If any (i) capital reorganization or reclassification of the share capital stock of the Company, Company (iiother than a distribution of stock in accordance with Section 10(B)) consolidation, amalgamation or consolidation or merger of the Company with another company in which corporation or the Company is not the survivor, (iii) sale, transfer or other disposition sale of all or substantially all of the Company’s its assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), corporation shall be effected, then, as a condition of such Fundamental Transactionreorganization, reclassification, consolidation, merger or Bale, lawful and adequate provision shall be made whereby the holder of each Warrantholder Warrant then outstanding shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions specified herein specified and in the Warrants and in lieu of the Warrant Shares shares of the common Stock of the Company immediately theretofore issuable purchasable and receivable upon the exercise of the Warrantrights represented by each such warrant, the highest amount such shares of such sharesstock, securities or assets as would have been issuable may be issued or payable with respect to or in exchange for a number of Warrant Shares outstanding shares of such Common Stock equal to the number of Warrant Shares shares of such Common stock immediately theretofore issuable purchasable and receivable upon the exercise of the Warrant, rights represented by each such Warrant had such Fundamental Transaction reorganization, reclassification, consolidation, merger or sale not taken place, and in any such case appropriate provision provisions shall be made with respect to the rights and interests interest of the holder of each Warrantholder Warrant then outstanding to the end that the provisions hereof thereof (including, including without limitation, provision limitation provisions for adjustment of the Warrant PricePrice and of the number of shares purchasable upon the exercise of each Warrant then outstanding) shall thereafter be applicable, applicable as nearly equivalent as may be practicable in relation to any sharesshares of stock, securities or assets thereafter deliverable upon the exercise hereof. The of each Warrant.
H. No adjustment of the Warrant Price shall be made in connection with the issuance or sale of shares of Common Stock issuable pursuant to currently outstanding options and warrants granted to officers, directors, employees, advisory directors, or affiliates of the Company.
I. Whenever the Warrant Price is adjusted as herein provided, the Company shall not effect any such Fundamental Transaction unless prior to or simultaneously (a) forthwith file with the consummation thereof Warrant Agent a certificate signed by the successor company (if other than Chairman of the Company) resulting from such consolidation, amalgamation or merger, Board or the company purchasing President or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address a Vice President of the Warrantholder appearing on Company and by the books Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, sharesshowing in detail the facts requiring such adjustment and the Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants after such adjustment and (b) cause a notice stating that such adjustment has been effected and stating the adjusted warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants to be published at least once a week for two consecutive weeks in a newspaper of general circulation in Oklahoma City, securities Oklahoma and in New York, New York. The Company, at its option, may cause a copy of such notice to be sent by first class mail, postage prepaid, to each registered holder of Warrants at his address appearing on the Warrant register. The Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours. The Warrant Agent shall not at any time be under any duty or assets asresponsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making such adjustment.
J. The Company may retain a firm of independent certified public accountants of recognized standing (which may be the firm that regularly examines the financial statements of the Company) selected by the Board of Directors of the Company or the Executive Committee of said Board and approved by the Warrant Agent, to make any computation required under this Section 8, and a certificate signed by such firm shall be conclusive evidence of the correctness of any computation made under this Section 8.
K. In case at any time conditions shall arise by reason of action taken by the Company which, in accordance with the foregoing provisionsopinion of the Board of Directors of the Company, the Warrantholder may be entitled to purchase, and are not adequately covered by the other obligations under this Warrant. The provisions of this paragraph Agreement and which might materially and adversely affect the rights of the holders of the Warrants, or in case at any time any such conditions are expected to arise by reason of any action contemplated by the Company, the Board of Directors of the Company shall appoint a firm of independent certified public accountants of recognized standing (cwhich may be the firm that regularly examines the financial statements of the Company), who shall give their opinion as to the adjustment, if any (not inconsistent with the standards established in this Section 8), of the Warrant Price and the number of shares of Common Stock purchasable pursuant hereto (including, if necessary, any adjustment as to the property which may be purchasable in lieu thereof upon exercise of the Warrants) which is, or would be, required to preserve without dilution the rights of the holders of the Warrants. The Board of Directors of the Company shall similarlymake the adjustment recommended forthwith upon the receipt of such opinion or the taking of any such action contemplated, as the case may be; provided, however, that no adjustment of the Warrant Price shall be made which in the opinion of the accountant or firm of accountants giving the aforesaid opinion would result in an increase of the Warrant Price to more than the Warrant Price then in effect except as otherwise provided in subsection E of this Section 8.
Appears in 1 contract
Warrant Price; Adjustments. Subject and pursuant to (a) The warrant price at which Common Stock shall be purchasable upon the provisions exercise of the Warrants shall be $6.25 at any time from __________ __, 1998 until 5:00 Eastern time on __________ __, 2002 or after adjustment, as provided in this Section 8Section, shall be such price as so adjusted (the "Warrant Price").
(b) The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to timetime as follows:
(i) In case the Company shall at any time after the date hereof pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, as set forth hereinafterthen upon such dividend or distribution the Warrant Price in effect immediately prior to such dividend or distribution shall forthwith be reduced to a price determined by dividing:
(A) an amount equal to the total number of shares of Common Stock outstanding immediately prior to such dividend or distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by
(B) the total number of shares of Common Stock outstanding immediately after such issuance or sale. For the purposes of any computation to be made in accordance with the provisions of this clause:
(i) The following provisions shall be applicable: Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution.
(aii) On each date this Warrant is exercised pursuant to In case the terms hereofCompany shall at any time subdivide or combine the outstanding Common Stock, the Warrant Price per Warrant Share shall forthwith be determined as set forth proportionately decreased in Exhibit A (as the case of subdivision or increased in the case of combination to the nearest one cent. Any such dollar amount per share may be adjusted pursuant to this Section 8, adjustment shall become effective at the “Warrant Price”)time such subdivision or combination shall become effective.
(biii) If Within a reasonable time after the close of each quarterly fiscal period of the Company during which the Warrant Price has been adjusted as herein provided, the Company shall:
(A) File with the Warrant Agent a certificate signed by the President or Vice President of the Company and by the Treasurer or Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, showing in detail the facts requiring all such adjustments occurring during such period and the Warrant Price after each such adjustment; and
(B) The Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours, and the Warrant Agent may conclusively rely upon the latest certificate furnished to it hereunder. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making any such adjustment, or with respect to the nature or extent of the property or securities deliverable hereunder. In the absence of a certificate having been furnished, the Warrant Agent may conclusively rely upon the provisions of the Warrants with respect to the Common Stock deliverable upon the exercise of the Warrants and the applicable Warrant Price thereof.
(C) Notwithstanding anything contained herein to the contrary, no adjustment of the Warrant Price shall be made if the amount of such adjustment shall be less than $.05, but in such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to not less than $.05.
(c) In the event that the number of outstanding shares of Common Stock is increased by a stock dividend payable in Common Stock or by a subdivision of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to time while Subsection (b) of this Warrant is outstanding, pay a Section by reason of such dividend or make a distribution on its Common Shares in Common Sharessubdivision, subdivide its issued and outstanding Common Shares into a greater the number of shares or combine its issued and of Common Stock issuable upon the exercise of each Warrant shall be increased in proportion to such increase in outstanding Common Shares into a smaller shares. In the event that the number of shares of Common Stock outstanding is decreased by a combination of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to Subsection (b) of this Section by reason of such combination, the number of shares of Common Stock issuable upon the exercise of each Warrant shall be decreased in proportion to such decrease in the outstanding shares of Common Stock.
(d) In case of any reorganization or issue by reclassification of its issued and the outstanding Common Shares Stock (other than a change in par value, or from par value to no par value, or as a result of a subdivision or combination), or in case of any consolidation of its share capital the Company with, or merger of the Company into, another corporation (including any such reclassification in connection with other than a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but corporation and which does not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever result in any event listed above shall occur.
(c) If any (i) capital reorganization or reclassification of the share capital of the Company, (ii) consolidation, amalgamation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”Stock), shall be effectedor in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, then, as a condition the holder of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder Warrant then outstanding shall thereafter have the right to purchase the kind and amount of shares of Common Stock and/or other securities and property receivable upon such reorganization, reclassification, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock which the holder of such Warrant shall then be entitled to purchase; such adjustments shall apply with respect to all such changes occurring between the date of this Warrant Agreement and the date of exercise of such Warrant.
(e) Subject to the provisions of this Section 9, in case the Company shall, at any time prior to the exercise of the Warrants, make any distribution of its assets to holders of its Common Stock as a liquidating or a partial liquidating dividend, then the holder of Warrants who exercises his Warrants after the record date for the determination of those holders of Common Stock entitled to such distribution of assets as a liquidating or partial liquidating dividend shall be entitled to receive for the Warrant Price per Warrant, in addition to each share of Common Stock, the amount of such distribution (or, at the option of the Company, a sum equal to the value of any such assets at the time of such distribution as determined by the Board of Directors of the Company in good faith), which would have been payable to such holder had he been the holder of record of the Common Stock receivable upon exercise of his Warrant on the record date for the determination of those entitled to such distribution.
(f) In case of the dissolution, liquidation or winding-up of the Company, all rights under the Warrants shall terminate on a date fixed by the Company, such date to be no earlier than ten (10) days prior to the effectiveness of such dissolution, liquidation or winding-up and not later than five (5) days prior to such effectiveness. Notice of such termination of purchase rights shall be given to the last registered holder of the Warrants, as the same shall appear on the books of the Company maintained by the Warrant Agent, by registered mail at least thirty (30) days prior to such termination date.
(g) In case the Company shall, at any time prior to the expiration of the Warrants and prior to the exercise thereof, offer to the holders of its Common Stock any rights to subscribe for additional shares of any class of the Company, then the Company shall give written notice thereof to the last registered holder thereof not less than thirty (30) days prior to the date on which the books of the Company are closed or a record date is fixed for the determination of the stockholders entitled to such subscription rights. Such notice shall specify the date as to which the books shall be closed or record date fixed with respect to such offer of subscription and the right of the holder thereof to participate in such offer of subscription shall terminate if the Warrant shall not be exercised on or before the date of such closing of the books or such record date.
(h) Any adjustment pursuant to the aforesaid provisions shall be made on the basis and upon of the terms and conditions herein specified and in lieu number of shares of Common Stock which the holder thereof would have been entitled to acquire by the exercise of the Warrant Shares immediately theretofore prior to the event giving rise to such adjustment.
(i) Irrespective of any adjustments in the Warrant Price or the number or kind of shares purchasable upon exercise of the Warrants, Warrants previously or thereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Warrants initially issuable pursuant to this Warrant Agreement.
(j) The Company may retain a firm of independent public accountants (who may be any such firm regularly employed by the Company) to make any computation required under this Section, and any certificate setting forth such computation signed by such firm shall be conclusive evidence of the correctness of any computation made under this Section.
(k) If at any time, as a result of an adjustment made pursuant to paragraph (d) above, the holders of a Warrant or Warrants shall become entitled to purchase any securities other than shares of Common Stock, thereafter the number of such securities so purchasable upon exercise of each Warrant and the Warrant Price for such shares shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in paragraphs (b) and (c).
(l) No adjustment to the Purchase Price of the Warrants or to the number of shares of Common Stock purchasable upon the exercise of such Warrants will be made, however under the following circumstances:
(i) upon the grant or exercise of any of the options presently outstanding (or options which may hereafter be granted and/or exercised) under the Company's 1997 Stock Option Plan for officers, directors and/or employees, consultants and similar situated parties of the Company; or
(ii) upon the sale or exercise of the Warrants; or
(iii) upon exercise of the Underwriters' Warrant as otherwise described in the Company's Prospectus dated __________ __, 1997; or
(iv) upon exercise or sale of the Warrants issuable upon exercise of the Underwriters' Warrant, the highest amount of such shares, securities or assets as would have been issuable or payable with respect ; or
(v) upon any amendment to or change in exchange the term of any rights or warrants to subscribe for a number or purchase, or options for the purchase of Warrant Shares equal to the number Common Stock or convertible securities, including, but not limited to, any extension of Warrant Shares immediately theretofore issuable upon any expiration date of any such right, warrant or option, any change in any exercise of the Warrant, had such Fundamental Transaction not taken place, and or purchase price provided for in any such case appropriate provision shall be made with respect to right, warrant or option, any extension of any date through which any convertible securities are convertible into or exchangeable for Common Stock or any change in the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision rate at which any convertible securities are convertible into or exchangeable for adjustment of the Warrant Price) shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing on the books of the Company, shares, securities or assets as, in accordance with the foregoing provisions, the Warrantholder may be entitled to purchase, and the other obligations under this Warrant. The provisions of this paragraph (c) shall similarlyCommon Stock.
Appears in 1 contract
Samples: Warrant Agreement (Discas Inc)
Warrant Price; Adjustments. Subject A. The price at which Common Stock shall be purchasable upon exercise of Warrants at any time after the Common Stock and Warrants become separately tradable until ____________, 2003 (hereinafter called the "Warrant Price") shall be $_____ per share of common stock or, if adjusted as provided in this Section, shall be such price as so adjusted.
B. The Warrant Price shall be subject to adjustment from time to time as follows:
(1) Except as hereinafter provided, in case the Company shall at any time or from time to time after the date hereof issue any additional shares of Common Stock for a consideration per share less than the Warrant Price in effect immediately prior to the issuance of such additional shares, or without consideration, then, upon each such issuance, the Warrant Price in effect immediately prior to the issuance of such additional shares shall forthwith be reduced to a price (calculated to the nearest full cent) determined by dividing:
(a) An amount equal to (i) the total number of shares of Common Stock outstanding immediately prior to such issuance multiplied by the Warrant Price in effect immediately prior to such issuance, plus (ii) the consideration. if any. received by the Company upon such issuance, by
(b) The total number of shares of Common Stock outstanding immediately after the issuance of such additional shares.
(2) The Company shall not be required to make any such adjustment of the Warrant Price in accordance with the foregoing if the amount of such adjustment shall be less than $0.05 (adjustment will be made when cumulative adjustment equals or exceeds $0.05) but in such case the Company shall maintain a cumulative record of the Warrant Price as it would have been in the absence of this provision (the "Constructive Warrant Price"), and for the purpose of computing a new Warrant Price after the next subsequent issuance of additional shares (but not for the purpose of determining whether an adjustment thereof is required under the terms of this paragraph) the constructive Warrant Price shall be deemed to be the Warrant Price in effect immediately prior to such issuance.
(3) For the purpose of this Section 8 the following provisions shall also be applicable:
(a) In the case of the issuance of additional shares of Common Stock for cash, the consideration received by the Company therefor shall be deemed to be the net cash proceeds received by the Company for such shares before deducting any commissions or other expenses paid or incurred by the Company for any underwriting of, or otherwise in connection with, the issuance of such shares.
(b) In case of the issuance (otherwise than upon conversion or exchange of shares of Common stock) of additional shares of Common Stock for a consideration other than cash or a consideration a part of which shall be other than cash, the amount of the consideration other than cash received by the Company for such shares shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company, as of the date of the adoption of the resolution of said Board, providing for the issuance of such shares for consideration other than cash or for consideration a part of which shall be other than cash, such fair value to include goodwill and other intangibles to the extent determined in good faith by the Board.
(c) In case of the issuance by the Company after the date hereof of any security (other than the Warrants) that is convertible into shares of Common Stock or of any warrants, rights or options to purchase shares of Common stock (except the options and warrants referred to in subsection H of this Section 8), (i) the Company shall be deemed (as provided in subparagraph (e) below) to have issued the maximum number of shares of Common Stock deliverable upon the exercise of such conversion privileges or warrants, rights or options, and (ii) the consideration therefor shall be deemed to be the consideration received by the Company for such convertible securities or for such warrants, rights or options, as the case may be, before deducting therefrom any expenses or commissions incurred or paid by the Company for any underwriting of, or otherwise in connection with, the issuance of such convertible security or warrants, rights or options, plus (A) the minimum consideration or adjustment payment to be received by the Company in connection with such conversion, or (B) the minimum price at which shares of Common Stock are to be delivered upon exercise of such warrants, rights or options or, if no minimum price is specified and such shares are to be delivered at an option price related to the market value of the subject shares, an option price bearing the same relation to the market value of the subject shares at the time such warrants, rights or options were granted; provided that as to such options such further adjustment as shall be necessary on the basis of the actual option price at the time of exercise shall be made at such time if the actual option price is less than the aforesaid assumed option price. No further adjustment of the Warrant Price shall be made as a result of the actual issuance of the shares of Common Stock referred to in this subparagraph (c). on the expiration of such warrants, rights or options, or the termination of such right to convert, the Warrant Price shall be readjusted to such Warrant Price as would have pertained had the adjustments made upon the issuance of such warrants, rights, options or convertible securities been made upon the basis of the delivery of only the number of shares of Common Stock actually delivered upon the exercise of such warrants, rights or options or upon the conversion of such securities.
(d) For the purposes hereof, any additional shares of Common Stock issued as a stock dividend shall be deemed to have been issued for no consideration.
(e) The number of shares of Common Stock at any time outstanding shall include the aggregate number of shares deliverable in respect of the convertible securities, rights and options referred to in subparagraph (C) of this paragraph; provided that with respect to shares referred to in clause (i) of subparagraph (c), to the extent that such warrants, options, rights or conversion privileges are not exercised, such shares shall be deemed to be outstanding only until the expiration dates of the warrants, rights, options or conversion privileges or the prior cancellation thereof.
C. In case the Company shall at any time subdivide its outstanding shares of Common stock into a greater number of shares, the Warrant Price in effect immediately prior to such subdivision shall be proportionately reduced and, in case the outstanding shares of the Common Stock of the Company shall be combined into a smaller number of shares, the Warrant Price in effect immediately prior to such combination shall be proportionately increased.
D. Upon each adjustment of the Warrant Price pursuant to the provisions of this Section 8, the Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, as set forth hereinafter.
(a) On each date this Warrant is exercised pursuant to the terms hereof, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If the Company shall, at any time or from time to time while this Warrant is outstanding, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which issuable upon the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this each Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately Price in effect prior to (but not including) the date on which such change shall become effective adjustment by a fraction, the numerator of which is shall be the number of shares of Common Shares outstanding immediately after giving Stock covered by the warrant and dividing the product so obtained by the adjusted Warrant Price.
E. Except upon consolidation or reclassification of the shares of Common Stock of the Company as provided for in subsection (c) hereof and except for readjustment of the Warrant Price upon expiration of warrants, rights or options as provided for in subparagraph (c) of paragraph 3 of subsection (B) hereof, the Warrant Price in effect to such at any time may not be adjusted upward or increased in any manner whatsoever.
F. Irrespective of any adjustment or change and in the denominator of which shall be warrant Price or the number of shares of Common Shares outstanding immediately prior Stock actually purchasable under the several Warrants, the Warrants theretofore and thereafter issued may continue to such change. Such adjustments shall be made successively whenever any event listed above shall occurexpress the Warrant Price per share and the number of shares purchasable thereunder as the Warrant Price per share and the number of shares purchasable were expressed in the Warrants when initially issued.
(c) G. If any (i) capital reorganization or reclassification of the share capital stock of the Company, Company (iiother than a distribution of stock in accordance with Section 10(B)) consolidation, amalgamation or consolidation or merger of the Company with another company in which corporation or the Company is not the survivor, (iii) sale, transfer or other disposition sale of all or substantially all of the Company’s its assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), corporation shall be effected, then, as a condition of such Fundamental Transactionreorganization, reclassification, consolidation, merger or Bale, lawful and adequate provision shall be made whereby the holder of each Warrantholder Warrant then outstanding shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions specified herein specified and in the Warrants and in lieu of the Warrant Shares shares of the common Stock of the Company immediately theretofore issuable purchasable and receivable upon the exercise of the Warrantrights represented by each such warrant, the highest amount such shares of such sharesstock, securities or assets as would have been issuable may be issued or payable with respect to or in exchange for a number of Warrant Shares outstanding shares of such Common Stock equal to the number of Warrant Shares shares of such Common stock immediately theretofore issuable purchasable and receivable upon the exercise of the Warrant, rights represented by each such Warrant had such Fundamental Transaction reorganization, reclassification, consolidation, merger or sale not taken place, and in any such case appropriate provision provisions shall be made with respect to the rights and interests interest of the holder of each Warrantholder Warrant then outstanding to the end that the provisions hereof thereof (including, including without limitation, provision limitation provisions for adjustment of the Warrant PricePrice and of the number of shares purchasable upon the exercise of each Warrant then outstanding) shall thereafter be applicable, applicable as nearly equivalent as may be practicable in relation to any sharesshares of stock, securities or assets thereafter deliverable upon the exercise hereof. The of each Warrant.
H. No adjustment of the Warrant Price shall be made in connection with the issuance or sale of shares of Common Stock issuable pursuant to currently outstanding options and warrants granted to officers, directors, employees, advisory directors, or affiliates of the Company.
I. Whenever the Warrant Price is adjusted as herein provided, the Company shall not effect any such Fundamental Transaction unless prior to or simultaneously (a) forthwith file with the consummation thereof Warrant Agent a certificate signed by the successor company (if other than Chairman of the Company) resulting from such consolidation, amalgamation or merger, Board or the company purchasing President or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address a Vice President of the Warrantholder appearing on Company and by the books Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, sharesshowing in detail the facts requiring such adjustment and the Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants after such adjustment and (b) cause a notice stating that such adjustment has been effected and stating the adjusted warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants to be published at least once a week for two consecutive weeks in a newspaper of general circulation in Oklahoma City, securities Oklahoma and in New York, New York. The Company, at its option, may cause a copy of such notice to be sent by first class mail, postage prepaid, to each registered holder of Warrants at his address appearing on the Warrant register. The Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours. The Warrant Agent shall not at any time be under any duty or assets asresponsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making such adjustment.
J. The Company may retain a firm of independent certified public accountants of recognized standing (which may be the firm that regularly examines the financial statements of the Company) selected by the Board of Directors of the Company or the Executive Committee of said Board and approved by the Warrant Agent, to make any computation required under this Section 8, and a certificate signed by such firm shall be conclusive evidence of the correctness of any computation made under this Section 8.
K. In case at any time conditions shall arise by reason of action taken by the Company which, in accordance with the foregoing provisionsopinion of the Board of Directors of the Company, the Warrantholder may be entitled to purchase, and are not adequately covered by the other obligations under this Warrant. The provisions of this paragraph Agreement and which might materially and adversely affect the rights of the holders of the Warrants, or in case at any time any such conditions are expected to arise by reason of any action contemplated by the Company, the Board of Directors of the Company shall appoint a firm of independent certified public accountants of recognized standing (cwhich may be the firm that regularly examines the financial statements of the Company), who shall give their opinion as to the adjustment, if any (not inconsistent with the standards established in this Section 8), of the Warrant Price and the number of shares of Common Stock purchasable pursuant hereto (including, if necessary, any adjustment as to the property which may be purchasable in lieu thereof upon exercise of the Warrants) which is, or would be, required to preserve without dilution the rights of the holders of the Warrants. The Board of Directors of the Company shall similarlymake the adjustment recommended forthwith upon the receipt of such opinion or the taking of any such action contemplated, as the case may be; provided, however, that no adjustment of the Warrant Price shall be made which in the opinion of the accountant or firm of accountants giving the aforesaid opinion would result in an increase of the Warrant Price to more than the Warrant Price then in effect except as otherwise provided in subsection E of this Section 8.
Appears in 1 contract
Samples: Warrant Agreement (Holloman Corp)
Warrant Price; Adjustments. Subject A. The price at which Common Stock shall be purchasable upon exercise of Warrants at any time after the Common Stock and Warrants become separately tradable until ____________ (hereinafter called the "Warrant Price") shall be $________ per share of common stock or, if adjusted as provided in this Section, shall be such price as so adjusted.
B. The Warrant Price shall be subject to adjustment from time to time as follows:
(1) Except as hereinafter provided, in case the Company shall at any time or from time to time after the date hereof issue any additional shares of Common Stock for a consideration per share less than the Warrant Price in effect immediately prior to the issuance of such additional shares, or without consideration, then, upon each such issuance, the Warrant Price in effect immediately prior to the issuance of such additional shares shall forthwith be reduced to a price (calculated to the nearest full cent) determined by dividing:
(a) An amount equal to (i) the total number of shares of Common Stock outstanding immediately prior to such issuance multiplied by the Warrant Price in effect immediately prior to such issuance, plus (ii) the consideration. if any. received by the Company upon such issuance, by
(b) The total number of shares of Common Stock outstanding immediately after the issuance of such additional shares.
(2) The Company shall not be required to make any such adjustment of the Warrant Price in accordance with the foregoing if the amount of such adjustment shall be less than $0.05 (adjustment will be made when cumulative adjustment equals or exceeds $0.05) but in such case the Company shall maintain a cumulative record of the Warrant Price as it would have been in the absence of this provision (the "Constructive Warrant Price"), and for the purpose of computing a new Warrant Price after the next subsequent issuance of additional shares (but not for the purpose of determining whether an adjustment thereof is required under the terms of this paragraph) the constructive Warrant Price shall be deemed to be the Warrant Price in effect immediately prior to such issuance.
(3) For the purpose of this Section 8 the following provisions shall also be applicable:
(a) In the case of the issuance of additional shares of Common Stock for cash, the consideration received by the Company therefor shall be deemed to be the net cash proceeds received by the Company for such shares before deducting any commissions or other expenses paid or incurred by the Company for any underwriting of, or otherwise in connection with, the issuance of such shares.
(b) In case of the issuance (otherwise than upon conversion or exchange of shares of Common stock) of additional shares of Common Stock for a consideration other than cash or a consideration a part of which shall be other than cash, the amount of the consideration other than cash received by the Company for such shares shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company, as of the date of the adoption of the resolution of said Board, providing for the issuance of such shares for consideration other than cash or for consideration a part of which shall be other than cash, such fair value to include goodwill and other intangibles to the extent determined in good faith by the Board.
(c) In case of the issuance by the Company after the date hereof of any security (other than the Warrants) that is convertible into shares of Common Stock or of any warrants, rights or options to purchase shares of Common stock (except the options and warrants referred to in subsection H of this Section 8), (i) the Company shall be deemed (as provided in subparagraph (e) below) to have issued the maximum number of shares of Common Stock deliverable upon the exercise of such conversion privileges or warrants, rights or options, and (ii) the consideration therefor shall be deemed to be the consideration received by the Company for such convertible securities or for such warrants, rights or options, as the case may be, before deducting therefrom any expenses or commissions incurred or paid by the Company for any underwriting of, or otherwise in connection with, the issuance of such convertible security or warrants, rights or options, plus (A) the minimum consideration or adjustment payment to be received by the Company in connection with such conversion, or (B) the minimum price at which shares of Common Stock are to be delivered upon exercise of such warrants, rights or options or, if no minimum price is specified and such shares are to be delivered at an option price related to the market value of the subject shares, an option price bearing the same relation to the market value of the subject shares at the time such warrants, rights or options were granted; provided that as to such options such further adjustment as shall be necessary on the basis of the actual option price at the time of exercise shall be made at such time if the actual option price is less than the aforesaid assumed option price. No further adjustment of the Warrant Price shall be made as a result of the actual issuance of the shares of Common Stock referred to in this subparagraph (c). on the expiration of such warrants, rights or options, or the termination of such right to convert, the Warrant Price shall be readjusted to such Warrant Price as would have pertained had the adjustments made upon the issuance of such warrants, rights, options or convertible securities been made upon the basis of the delivery of only the number of shares of Common Stock actually delivered upon the exercise of such warrants, rights or options or upon the conversion of such securities.
(d) For the purposes hereof, any additional shares of Common Stock issued as a stock dividend shall be deemed to have been issued for no consideration.
(e) The number of shares of Common Stock at any time outstanding shall include the aggregate number of shares deliverable in respect of the convertible securities, rights and options referred to in subparagraph (C) of this paragraph; provided that with respect to shares referred to in clause (i) of subparagraph (c), to the extent that such warrants, options, rights or conversion privileges are not exercised, such shares shall be deemed to be outstanding only until the expiration dates of the warrants, rights, options or conversion privileges or the prior cancellation thereof.
C. In case the Company shall at any time subdivide its outstanding shares of Common stock into a greater number of shares, the Warrant Price in effect immediately prior to such subdivision shall be proportionately reduced and, in case the outstanding shares of the Common Stock of the Company shall be combined into a smaller number of shares, the Warrant Price in effect immediately prior to such combination shall be proportionately increased.
D. Upon each adjustment of the Warrant Price pursuant to the provisions of this Section 8, the Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, as set forth hereinafter.
(a) On each date this Warrant is exercised pursuant to the terms hereof, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If the Company shall, at any time or from time to time while this Warrant is outstanding, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which issuable upon the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this each Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately Price in effect prior to (but not including) the date on which such change shall become effective adjustment by a fraction, the numerator of which is shall be the number of shares of Common Shares outstanding immediately after giving Stock covered by the warrant and dividing the product so obtained by the adjusted Warrant Price.
E. Except upon consolidation or reclassification of the shares of Common Stock of the Company as provided for in subsection (c) hereof and except for readjustment of the Warrant Price upon expiration of warrants, rights or options as provided for in subparagraph (c) of paragraph 3 of subsection (B) hereof, the Warrant Price in effect to such at any time may not be adjusted upward or increased in any manner whatsoever.
F. Irrespective of any adjustment or change and in the denominator of which shall be warrant Price or the number of shares of Common Shares outstanding immediately prior Stock actually purchasable under the several Warrants, the Warrants theretofore and thereafter issued may continue to such change. Such adjustments shall be made successively whenever any event listed above shall occurexpress the Warrant Price per share and the number of shares purchasable thereunder as the Warrant Price per share and the number of shares purchasable were expressed in the Warrants when initially issued.
(c) G. If any (i) capital reorganization or reclassification of the share capital stock of the Company, Company (iiother than a distribution of stock in accordance with Section 10(B)) consolidation, amalgamation or consolidation or merger of the Company with another company in which corporation or the Company is not the survivor, (iii) sale, transfer or other disposition sale of all or substantially all of the Company’s its assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), corporation shall be effected, then, as a condition of such Fundamental Transactionreorganization, reclassification, consolidation, merger or Bale, lawful and adequate provision shall be made whereby the holder of each Warrantholder Warrant then outstanding shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions specified herein specified and in the Warrants and in lieu of the Warrant Shares shares of the common Stock of the Company immediately theretofore issuable purchasable and receivable upon the exercise of the Warrantrights represented by each such warrant, the highest amount such shares of such sharesstock, securities or assets as would have been issuable may be issued or payable with respect to or in exchange for a number of Warrant Shares outstanding shares of such Common Stock equal to the number of Warrant Shares shares of such Common stock immediately theretofore issuable purchasable and receivable upon the exercise of the Warrant, rights represented by each such Warrant had such Fundamental Transaction reorganization, reclassification, consolidation, merger or sale not taken place, and in any such case appropriate provision provisions shall be made with respect to the rights and interests interest of the holder of each Warrantholder Warrant then outstanding to the end that the provisions hereof thereof (including, including without limitation, provision limitation provisions for adjustment of the Warrant PricePrice and of the number of shares purchasable upon the exercise of each Warrant then outstanding) shall thereafter be applicable, applicable as nearly equivalent as may be practicable in relation to any sharesshares of stock, securities or assets thereafter deliverable upon the exercise hereof. The of each Warrant.
H. No adjustment of the Warrant Price shall be made in connection with the issuance or sale of shares of Common Stock issuable pursuant to currently outstanding options and warrants granted to officers, directors, employees, advisory directors, or affiliates of the Company.
I. Whenever the Warrant Price is adjusted as herein provided, the Company shall not effect any such Fundamental Transaction unless prior to or simultaneously (a) forthwith file with the consummation thereof Warrant Agent a certificate signed by the successor company (if other than Chairman of the Company) resulting from such consolidation, amalgamation or merger, Board or the company purchasing President or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address a Vice President of the Warrantholder appearing on Company and by the books Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, sharesshowing in detail the facts requiring such adjustment and the Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants after such adjustment and (b) cause a notice stating that such adjustment has been effected and stating the adjusted warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants to be published at least once a week for two consecutive weeks in a newspaper of general circulation in Denver, securities Colorado and in New York, New York. The Company, at its option, may cause a copy of such notice to be sent by first class mail, postage prepaid, to each registered holder of Warrants at his address appearing on the Warrant register. The Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours. The Warrant Agent shall not at any time be under any duty or assets asresponsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making such adjustment.
J. The Company may retain a firm of independent certified public accountants of recognized standing (which may be the firm that regularly examines the financial statements of the Company) selected by the Board of Directors of the Company or the Executive Committee of said Board and approved by the Warrant Agent, to make any computation required under this Section 8, and a certificate signed by such firm shall be conclusive evidence of the correctness of any computation made under this Section 8.
K. In case at any time conditions shall arise by reason of action taken by the Company which, in accordance with the foregoing provisionsopinion of the Board of Directors of the Company, the Warrantholder may be entitled to purchase, and are not adequately covered by the other obligations under this Warrant. The provisions of this paragraph Agreement and which might materially and adversely affect the rights of the holders of the Warrants, or in case at any time any such conditions are expected to arise by reason of any action contemplated by the Company, the Board of Directors of the Company shall appoint a firm of independent certified public accountants of recognized standing (cwhich may be the firm that regularly examines the financial statements of the Company), who shall give their opinion as to the adjustment, if any (not inconsistent with the standards established in this Section 8), of the Warrant Price and the number of shares of Common Stock purchasable pursuant hereto (including, if necessary, any adjustment as to the property which may be purchasable in lieu thereof upon exercise of the Warrants) which is, or would be, required to preserve without dilution the rights of the holders of the Warrants. The Board of Directors of the Company shall similarlymake the adjustment recommended forthwith upon the receipt of such opinion or the taking of any such action contemplated, as the case may be; provided, however, that no adjustment of the Warrant Price shall be made which in the opinion of the accountant or firm of accountants giving the aforesaid opinion would result in an increase of the Warrant Price to more than the Warrant Price then in effect except as otherwise provided in subsection E of this Section 8.
Appears in 1 contract
Warrant Price; Adjustments. Subject A. The price at which Common Stock shall be purchasable upon exercise of Warrants at any time after the Common Stock and pursuant to Warrants become separately tradeable until ______________, 2000 (hereinafter called the provisions "Warrant Price") shall be $_______ per share of Common Stock or, if adjusted as provided in this Section 8Section, the shall be such price as so adjusted.
B. The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, time as set forth hereinafter.follows:
(a1) On each date this Warrant is exercised pursuant to the terms hereofExcept as hereinafter provided, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If case the Company shall, shall at any time or from time to time while after the date hereof issue any additional shares of Common Stock for a consideration per share less than the Warrant Price in effect immediately prior to the issuance of such additional shares, or without consideration, then, upon each such issuance, the Warrant Price in effect immediately prior to the issuance of such additional shares shall forthwith be reduced to a price (calculated to the nearest full cent) determined by dividing:
(a) An amount equal to (i) the total number of shares of Common Stock outstanding immediately prior to such issuance multiplied by the Warrant Price in effect immediately prior to such issuance, plus (ii) the consideration, if any, received by the Company upon such issuance, by
(b) The total number of shares of Common Stock outstanding immediately after the issuance of such additional shares.
(2) The Company shall not be required to make any such adjustment of the Warrant Price in accordance with the foregoing if the amount of such adjustment shall be less than $.25 but in such case the Company shall maintain a cumulative record of the Warrant Price as it would have been in the absence of this provision (the "Constructive Warrant Price"), and for the purpose of computing a new Warrant Price after the next subsequent issuance of additional shares (but not for the purpose of determining whether an adjustment thereof is outstandingrequired under the terms of this paragraph) the constructive Warrant Price shall be deemed to be the Warrant Price in effect immediately prior to such issuance.
(3) For the purpose of this (S)8 the following provisions shall also be applicable:
(a) In the case of the issuance of additional shares of Common Stock for cash, pay the consideration received by the Company therefor shall be deemed to be the net cash proceeds received by the Company for such shares before deducting any commissions or other expenses paid or incurred by the Company for any underwriting of, or otherwise in connection with, the issuance of such shares.
(b) In case of the issuance (otherwise than upon conversion or exchange of shares of Common Stock) of additional shares of Common Stock for a consideration other than cash or a consideration a part of which shall be other than cash, the amount of the consideration other than cash received by the Company for such shares shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company, as of the date of the adoption of the resolution of said Board, providing for the issuance of such shares for consideration other than cash or for consideration a part of which shall be other than cash, such fair value to include goodwill and other intangibles to the extent determined in good faith by the Board.
(c) In case of the issuance by the Company after the date hereof, of any security (other than the Warrants) that is convertible into shares of Common Stock or of any warrants, rights or options to purchase shares of Common Stock (except the options and warrants referred to in subsection H of this (S)8), (i) the Company shall be deemed (as provided in subparagraph (e) below) to have issued the maximum number of shares of Common Stock deliverable upon the exercise of such conversion privileges or warrants, rights or options, and (ii) the consideration therefor shall be deemed to be the consideration received by the Company for such convertible securities or for such warrants, rights or options, as the case may be, before deducting therefrom any expenses or commissions incurred or paid by the Company for any underwriting of, or otherwise in connection with, the issuance of such convertible security or warrants, rights or options, plus (A) the minimum consideration or adjustment payment to be received by the Company in connection with such conversion, or (B) the minimum price at which shares of Common Stock are to be delivered upon exercise of such warrants, rights or options or, if no minimum price is specified and such shares are to be delivered at an option price related to the market value of the subject shares, an option price bearing the same relation to the market value of the subject shares at the time such warrants, rights or options were granted; provided that as to such options such further adjustment as shall be necessary on the basis of the actual option price at the time of exercise shall be made at such time if the actual option price is less than the aforesaid assumed option price. No further adjustment of the Warrant Price shall be made as a result of the actual issuance of the shares of Common Stock referred to in this subparagraph (c). On the expiration of such warrants, rights or options, or the termination of such right to convert, the Warrant Price shall be readjusted to such Warrant Price as would have pertained had the adjustments made upon the issuance of such warrants, rights, options or convertible securities been made upon the basis of the delivery of only the number of shares of Common Stock actually delivered upon the exercise of such warrants, rights or options or upon the conversion of such securities.
(d) For the purposes hereof, any additional shares of Common Stock issued as a stock dividend shall be deemed to have been issued for no consideration.
(e) The number of shares of Common Stock at any time outstanding shall include the aggregate number of shares deliverable in respect of the convertible securities, rights and options referred to in subparagraph (c) of this paragraph; provided that with respect to shares referred to in clause (i) of subparagraph (C), to the extent that such warrants, options, rights or make a distribution on its Common Shares in Common Sharesconversion privileges are not exercised, such shares shall be deemed to be outstanding only until the expiration dates of the warrants, rights, options or conversion privileges or the prior cancellation thereof.
C. In case the Company shall at any time subdivide its issued and outstanding shares of Common Shares Stock into a greater number of shares, the Warrant Price in effect immediately prior to such subdivision shall be proportionately reduced and, in case the outstanding shares or combine its issued and outstanding of the Common Shares Stock of the Company shall be combined into a smaller number of shares or issue by reclassification shares, the Warrant Price in effect immediately prior to such combination shall be proportionately increased.
D. Upon each adjustment of its issued and outstanding Common Shares any the Warrant Price pursuant to the provisions of its share capital this (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing company)S)8, then the number of Warrant Shares purchasable shares issuable upon the exercise of this each Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately Price in effect prior to (but not including) the date on which such change shall become effective adjustment by a fraction, the numerator of which is shall be the number of shares of Common Shares outstanding immediately after giving Stock covered by the Warrant and dividing the product so obtained by the adjusted Warrant Price.
E. Except upon consolidation or reclassification of the shares of Common Stock of the Company as provided for in subsection (C) hereof and except for readjustment of the Warrant Price upon expiration of warrants, rights or options as provided for in subparagraph (c) paragraph 3 of subsection (B) hereof, the Warrant Price in effect to such at any time may not be adjusted upward or increased in any manner whatsoever.
F. Irrespective of any adjustment or change and in the denominator of which shall be Warrant Price or the number of shares of Common Shares outstanding immediately prior Stock actually purchasable under the several Warrants, the Warrants theretofore and thereafter issued may continue to such change. Such adjustments shall be made successively whenever any event listed above shall occurexpress the Warrant Price per share and the number of shares purchasable thereunder as the Warrant Price per share and the number of shares purchasable were expressed in the Warrants when initially issued.
(c) G. If any (i) capital reorganization or reclassification of the share capital stock of the Company, Company (iiother than a distribution of stock in accordance with (S)10(B)) consolidation, amalgamation or consolidation or merger of the Company with another company in which corporation or the Company is not the survivor, (iii) sale, transfer or other disposition sale of all or substantially all of the Company’s its assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), corporation shall be effected, then, as a condition of such Fundamental Transactionreorganization, reclassification, consolidation, merger or sale, lawful and adequate provision shall be made whereby the holder of each Warrantholder Warrant then outstanding shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions specified herein specified and in the Warrants and in lieu of the Warrant Shares shares of the Common Stock of the Company immediately theretofore issuable purchasable and receivable upon the exercise of the rights represented by each such Warrant, the highest amount such shares of such sharesstock, securities or assets as would have been issuable may be issued or payable with respect to or in exchange for a number of Warrant Shares outstanding shares of such Common Stock equal to the number of Warrant Shares shares of such Common stock immediately theretofore issuable purchasable and receivable upon the exercise of the Warrant, rights represented by each such Warrant had such Fundamental Transaction reorganization, reclassification, consolidation, merger or sale not taken place, and in any such case appropriate provision provisions shall be made with respect to the rights and interests interest of the holder of each Warrantholder Warrant then outstanding to the end that the provisions hereof thereof (including, including without limitation, provision limitation provisions for adjustment of the Warrant PricePrice and of the number of shares purchasable upon the exercise of each Warrant then outstanding) shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any sharesshares of stock, securities or assets thereafter deliverable upon the exercise hereof. The of each Warrant.
H. No adjustment of the Warrant Price shall be made in connection with the issuance or sale of shares of Common Stock issuable pursuant to currently outstanding options and warrants granted to officers, directors, employees, advisory directors, or affiliates of the Company.
I. Whenever the Warrant Price is adjusted as herein provided, the Company shall not effect any such Fundamental Transaction unless prior to or simultaneously (a) forthwith file with the consummation thereof Warrant Agent a certificate signed by the successor company (if other than Chairman of the Company) resulting from such consolidation, amalgamation or merger, Board or the company purchasing President or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address a Vice President of the Warrantholder appearing on Company and by the books Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, sharesshowing in detail the facts requiring such adjustment and the Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants after such adjustment and (b) cause a notice stating that such adjustment has been effected and stating the adjusted Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants to be published at least once a week for ______ consecutive weeks in a newspaper of general circulation in Dallas, securities Texas and in New York, New York. The Company, at its option, may cause a copy of such notice to be sent by first class mail, postage prepaid, to each registered holder of Warrants at his address appearing on the Warrant register. The Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours. The Warrant Agent shall not at any time be under any duty or assets asresponsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making such adjustment.
J. The Company may retain a firm of independent certified public accountants of recognized standing (which may be the firm that regularly examines the financial statements of the Company) selected by the Board of Directors of the Company or the Executive Committee of said Board and approved by the Warrant Agent, to make any computation required under this (S)8, and a certificate signed by such firm shall be conclusive evidence of the correctness of any computation made under this (S)8.
K. In case at any time conditions shall arise by reason of action taken by the Company which, in accordance with the foregoing provisionsopinion of the Board of Directors of the Company, the Warrantholder may be entitled to purchase, and are not adequately covered by the other obligations under this Warrant. The provisions of this paragraph Agreement and which might materially and adversely affect the rights of the holders of the Warrants, or in case at any time any such conditions are expected to arise by reason of any action contemplated by the Company, the Board of Directors of the Company shall appoint a firm of independent certified public accountants of recognized standing (cwhich may be the firm that regularly examines the financial statements of the Company), who shall give their opinion as to the adjustment, if any (not inconsistent with the standards established in this (S)8), of the Warrant Price and the number of shares of Common Stock purchasable pursuant hereto (including, if necessary, any adjustment as to the property which may be purchasable in lieu thereof upon exercise of the Warrants) which is, or would be, required to preserve without dilution the rights of the holders of the Warrants. The Board of Directors of the Company shall similarlymake the adjustment recommended forthwith upon the receipt of such opinion or the taking of any such action contemplated, as the case may be; provided, however, that no adjustment of the Warrant Price shall be made which in the opinion of the accountant or firm of accountants giving the aforesaid opinion would result in an increase of the Warrant Price to more than the Warrant Price then in effect except as otherwise provided in subsection E of this (S)8.
Appears in 1 contract
Warrant Price; Adjustments. Subject A. The price at which Common Stock shall be purchasable upon exercise of Warrants is $0.50 per share of common stock or, if adjusted as provided in this Section, shall be such price as so adjusted.
B. The Warrant Price shall be subject to adjustment from time to time as follows:
(1) Except as hereinafter provided, in case the Company shall at any time or from time to time after the date hereof issue any additional shares of Common Stock for a consideration per share less than the Warrant Price in effect immediately prior to the issuance of such additional shares, or without consideration, then, upon each such issuance, the Warrant Price in effect immediately prior to the issuance of such additional shares shall forthwith be reduced to a price (calculated to the nearest full cent) determined by dividing:
(a) An amount equal to (i) the total number of shares of Common Stock outstanding immediately prior to such issuance multiplied by the Warrant Price in effect immediately prior to such issuance, plus (ii) the consideration, if any, received by the Company upon such issuance, by
(b) The total number of shares of Common Stock outstanding immediately after the issuance of such additional shares.
(2) The Company shall not be required to make any such adjustment of the Warrant Price in accordance with the foregoing if the amount of such adjustment shall be less than $0.05 (adjustment will be made when cumulative adjustment equals or exceeds $0.05) but in such case the Company shall maintain a cumulative record of the Warrant Price as it would have been in the absence of this provision (the "CONSTRUCTIVE WARRANT PRICE"), and for the purpose of computing a new Warrant Price after the next subsequent issuance of additional shares (but not for the purpose of determining whether an adjustment thereof is required under the terms of this paragraph) the constructive Warrant Price shall be deemed to be the Warrant Price in effect immediately prior to such issuance.
(3) For the purpose of this Section 8 the following provisions shall also be applicable:
(a) In the case of the issuance of additional shares of Common Stock for cash, the consideration received by the Company therefor shall be deemed to be the net cash proceeds received by the Company for such shares before deducting any commissions or other expenses paid or incurred by the Company for any underwriting of, or otherwise in connection with, the issuance of such shares.
(b) In case of the issuance (otherwise than upon conversion or exchange of shares of Common stock) of additional shares of Common Stock for a consideration other than cash or a consideration a part of which shall be other than cash, the amount of the consideration other than cash received by the Company for such shares shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company, as of the date of the adoption of the resolution of said Board, providing for the issuance of such shares for consideration other than cash or for consideration a part of which shall be other than cash, such fair value to include goodwill and other intangibles to the extent determined in good faith by the Board.
(c) In case of the issuance by the Company after the date hereof of any security (other than the Warrants) that is convertible into shares of Common Stock or of any warrants, rights or options to purchase shares of Common stock (except the options and warrants referred to in subsection H of this Section 8), (i) the Company shall be deemed (as provided in subparagraph (e) below) to have issued the maximum number of shares of Common Stock deliverable upon the exercise of such conversion privileges or warrants, rights or options, and (ii) the consideration therefor shall be deemed to be the consideration received by the Company for such convertible securities or for such warrants, rights or options, as the case may be, before deducting therefrom any expenses or commissions incurred or paid by the Company for any underwriting of, or otherwise in connection with, the issuance of such convertible security or warrants, rights or options, plus (A) the minimum consideration or adjustment payment to be received by the Company in connection with such conversion, or (B) the minimum price at which shares of Common Stock are to be delivered upon exercise of such warrants, rights or options or, if no minimum price is specified and such shares are to be delivered at an option price related to the market value of the subject shares, an option price bearing the same relation to the market value of the subject shares at the time such warrants, rights or options were granted; provided that as to such options such further adjustment as shall be necessary on the basis of the actual option price at the time of exercise shall be made at such time if the actual option price is less than the aforesaid assumed option price. No further adjustment of the Warrant Price shall be made as a result of the actual issuance of the shares of Common Stock referred to in this subparagraph (c). on the expiration of such warrants, rights or options, or the termination of such right to convert, the Warrant Price shall be readjusted to such Warrant Price as would have pertained had the adjustments made upon the issuance of such warrants, rights, options or convertible securities been made upon the basis of the delivery of only the number of shares of Common Stock actually delivered upon the exercise of such warrants, rights or options or upon the conversion of such securities.
(d) For the purposes hereof, any additional shares of Common Stock issued as a stock dividend shall be deemed to have been issued for no consideration.
(e) The number of shares of Common Stock at any time outstanding shall include the aggregate number of shares deliverable in respect of the convertible securities, rights and options referred to in subparagraph (c) of this paragraph; provided that with respect to shares referred to in clause (i) of subparagraph (c), to the extent that such warrants, options, rights or conversion privileges are not exercised, such shares shall be deemed to be outstanding only until the expiration dates of the warrants, rights, options or conversion privileges or the prior cancellation thereof.
C. In case the Company shall at any time subdivide its outstanding shares of Common stock into a greater number of shares, the Warrant Price in effect immediately prior to such subdivision shall be proportionately reduced and, in case the outstanding shares of the Common Stock of the Company shall be combined into a smaller number of shares, the Warrant Price in effect immediately prior to such combination shall be proportionately increased.
D. Upon each adjustment of the Warrant Price pursuant to the provisions of this Section 8, the Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, as set forth hereinafter.
(a) On each date this Warrant is exercised pursuant to the terms hereof, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If the Company shall, at any time or from time to time while this Warrant is outstanding, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which issuable upon the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this each Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately Price in effect prior to (but not including) the date on which such change shall become effective adjustment by a fraction, the numerator of which is shall be the number of shares of Common Shares outstanding immediately after giving Stock covered by the warrant and dividing the product so obtained by the adjusted Warrant Price.
E. Except upon consolidation or reclassification of the shares of Common Stock of the Company as provided for in subsection C hereof and except for readjustment of the Warrant Price upon expiration of warrants, rights or options as provided for in subparagraph (c) of paragraph 3 of subsection B hereof, the Warrant Price in effect to such at any time may not be adjusted upward or increased in any manner whatsoever.
F. Irrespective of any adjustment or change and in the denominator of which shall be Warrant Price or the number of shares of Common Shares outstanding immediately prior Stock actually purchasable under the several Warrants, the Warrants theretofore and thereafter issued may continue to such change. Such adjustments shall be made successively whenever any event listed above shall occurexpress the Warrant Price per share and the number of shares purchasable thereunder as the Warrant Price per share and the number of shares purchasable were expressed in the Warrants when initially issued.
(c) G. If any (i) capital reorganization or reclassification of the share capital stock of the Company, Company (iiother than a distribution of stock in accordance with Section 10.B) consolidation, amalgamation or consolidation or merger of the Company with another company in which corporation or the Company is not the survivor, (iii) sale, transfer or other disposition sale of all or substantially all of the Company’s its assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), corporation shall be effected, then, as a condition of such Fundamental Transactionreorganization, reclassification, consolidation, or merger or sale, lawful and adequate provision shall be made whereby the holder of each Warrantholder Warrant then outstanding shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions specified herein specified and in the Warrants and in lieu of the Warrant Shares shares of the Common Stock immediately theretofore issuable purchasable and receivable upon the exercise of the rights represented by each such Warrant, the highest amount such shares of such sharesstock, securities or assets as would have been issuable may be issued or payable with respect to or in exchange for a number of Warrant Shares outstanding shares of such Common Stock equal to the number of Warrant Shares shares of such Common Stock immediately theretofore issuable purchasable and receivable upon the exercise of the Warrant, rights represented by each such Warrant had such Fundamental Transaction reorganization, reclassification, consolidation, merger or sale not taken place, and in any such case appropriate provision provisions shall be made with respect to the rights and interests interest of the holder of each Warrantholder Warrant then outstanding to the end that the provisions hereof thereof (including, including without limitation, provision limitation provisions for adjustment of the Warrant PricePrice and of the number of shares purchasable upon the exercise of each Warrant then outstanding) shall thereafter be applicable, applicable as nearly equivalent as may be practicable in relation to any sharesshares of stock, securities or assets thereafter deliverable upon the exercise hereof. The of each Warrant.
H. No adjustment of the Warrant Price shall be made in connection with the issuance or sale of shares of Common Stock issuable pursuant to currently outstanding options and warrants granted to officers, directors, employees, advisory directors, or affiliates of the Company.
I. Whenever the Warrant Price is adjusted as herein provided, the Company shall not effect any such Fundamental Transaction unless prior to or simultaneously (a) forthwith file with the consummation thereof Warrant Agent a certificate signed by the successor company (if other than Chairman of the Company) resulting from such consolidation, amalgamation or merger, Board or the company purchasing President or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address a Vice President of the Warrantholder appearing on Company and by the books Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, sharesshowing in detail the facts requiring such adjustment and the Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants after such adjustment and (b) cause a notice stating that such adjustment has been effected and stating the adjusted Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants to be published at least once a week for two consecutive weeks in a newspaper of general circulation in Denver, securities Colorado and in New York, New York. The Company, at its option, may cause a copy of such notice to be sent by first class mail, postage prepaid, to each registered holder of Warrants at his address appearing on the Warrant register. The Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours. The Warrant Agent shall not at any time be under any duty or assets asresponsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making such adjustment.
J. The Company may retain a firm of independent certified public accountants of recognized standing (which may be the firm that regularly examines the financial statements of the Company) selected by the Board of Directors of the Company or the Executive Committee of said Board and approved by the Warrant Agent, to make any computation required under this Section 8, and a certificate signed by such firm shall be conclusive evidence of the correctness of any computation made under this Section 8.
K. In case at any time conditions shall arise by reason of action taken by the Company which, in accordance with the foregoing provisionsopinion of the Board of Directors of the Company, the Warrantholder may be entitled to purchase, and are not adequately covered by the other obligations under this Warrant. The provisions of this paragraph Agreement and which might materially and adversely affect the rights of the holders of the Warrants, or in case at any time any such conditions are expected to arise by reason of any action contemplated by the Company, the Board of Directors of the Company shall appoint a firm of independent certified public accountants of recognized standing (cwhich may be the firm that regularly examines the financial statements of the Company), who shall give their opinion as to the adjustment, if any (not inconsistent with the standards established in this Section 8), of the Warrant Price and the number of shares of Common Stock purchasable pursuant hereto (including, if necessary, any adjustment as to the property which may be purchasable in lieu thereof upon exercise of the Warrants) which is, or would be, required to preserve without dilution the rights of the holders of the Warrants. The Board of Directors of the Company shall similarlymake the adjustment recommended forthwith upon the receipt of such opinion or the taking of any such action contemplated, as the case may be; provided, however, that no adjustment of the Warrant Price shall be made which in the opinion of the accountant or firm of accountants giving the aforesaid opinion would result in an increase of the Warrant Price to more than the Warrant Price then in effect except as otherwise provided in subsection E of this Section 8.
Appears in 1 contract
Samples: Warrant Agreement (I Track Inc)
Warrant Price; Adjustments. Subject A. The exercise price (the "Exercise Price") at which Common Stock shall be purchasable upon exercise of the Warrants at any time after the Common Stock and Warrants become separately tradable and until 5:00 p.m., New York, New York time, on ____________, 2005, shall be $_______ per share of Common Stock or, if adjusted as provided in this Section, shall be such price as so adjusted.
B. The Warrant Price shall be subject to adjustment from time to time as follows:
(1) Except as hereinafter provided, in case the Company shall at any time or from time to time after the date hereof issue any additional shares of Common Stock for a consideration per share less than the Warrant Price in effect immediately prior to the issuance of such additional shares, or without consideration, then, upon each such issuance, the Warrant Price in effect immediately prior to the issuance of such additional shares shall forthwith be reduced to a price (calculated to the nearest full cent) determined by dividing:
(a) An amount equal to (i) the total number of shares of Common Stock outstanding immediately prior to such issuance multiplied by the Warrant Price in effect immediately prior to such issuance, plus (ii) the consideration, if any, received by the Company upon such issuance, by
(b) The total number of shares of Common Stock outstanding immediately after the issuance of such additional shares.
(2) The Company shall not be required to make any such adjustment of the Warrant Price in accordance with the foregoing if the amount of such adjustment shall be less than $0.05 (adjustment will be made when cumulative adjustment equals or exceeds $0.05) but in such case the Company shall maintain a cumulative record of the Warrant Price as it would have been in the absence of this provision (the "Constructive Warrant Price"), and for the purpose of computing a new Warrant Price after the next subsequent issuance of additional shares (but not for the purpose of determining whether an adjustment thereof is required under the terms of this paragraph) the constructive Warrant Price shall be deemed to be the Warrant Price in effect immediately prior to such issuance.
(3) For the purpose of this Section 8 the following provisions shall also be applicable:
(a) In the case of the issuance of additional shares of Common Stock for cash, the consideration received by the Company therefor shall be deemed to be the net cash proceeds received by the Company for such shares before deducting any commissions or other expenses paid or incurred by the Company for any underwriting of, or otherwise in connection with, the issuance of such shares.
(b) In case of the issuance (otherwise than upon conversion or exchange of shares of Common stock) of additional shares of Common Stock for a consideration other than cash or a consideration a part of which shall be other than cash, the amount of the consideration other than cash received by the Company for such shares shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company, as of the date of the adoption of the resolution of said Board, providing for the issuance of such shares for consideration other than cash or for consideration a part of which shall be other than cash, such fair value to include goodwill and other intangibles to the extent determined in good faith by the Board.
(c) In case of the issuance by the Company after the date hereof of any security (other than the Warrants) that is convertible into shares of Common Stock or of any warrants, rights or options to purchase shares of Common stock (except the options and warrants referred to in subsection H of this Section 8), (i) the Company shall be deemed (as provided in subparagraph (e) below) to have issued the maximum number of shares of Common Stock deliverable upon the exercise of such conversion privileges or warrants, rights or options, and (ii) the consideration therefor shall be deemed to be the consideration received by the Company for such convertible securities or for such warrants, rights or options, as the case may be, before deducting therefrom any expenses or commissions incurred or paid by the Company for any underwriting of, or otherwise in connection with, the issuance of such convertible security or warrants, rights or options, plus (A) the minimum consideration or adjustment payment to be received by the Company in connection with such conversion, or (B) the minimum price at which shares of Common Stock are to be delivered upon exercise of such warrants, rights or options or, if no minimum price is specified and such shares are to be delivered at an option price related to the market value of the subject shares, an option price bearing the same relation to the market value of the subject shares at the time such warrants, rights or options were granted; provided that as to such options such further adjustment as shall be necessary on the basis of the actual option price at the time of exercise shall be made at such time if the actual option price is less than the aforesaid assumed option price. No further adjustment of the Warrant Price shall be made as a result of the actual issuance of the shares of Common Stock referred to in this subparagraph (c). on the expiration of such warrants, rights or options, or the termination of such right to convert, the Warrant Price shall be readjusted to such Warrant Price as would have pertained had the adjustments made upon the issuance of such warrants, rights, options or convertible securities been made upon the basis of the delivery of only the number of shares of Common Stock actually delivered upon the exercise of such warrants, rights or options or upon the conversion of such securities.
(d) For the purposes hereof, any additional shares of Common Stock issued as a stock dividend shall be deemed to have been issued for no consideration.
(e) The number of shares of Common Stock at any time outstanding shall include the aggregate number of shares deliverable in respect of the convertible securities, rights and options referred to in subparagraph (c) of this paragraph; provided that with respect to shares referred to in clause (i) of subparagraph (c), to the extent that such warrants, options, rights or conversion privileges are not exercised, such shares shall be deemed to be outstanding only until the expiration dates of the warrants, rights, options or conversion privileges or the prior cancellation thereof.
C. In case the Company shall at any time subdivide its outstanding shares of Common stock into a greater number of shares, the Warrant Price in effect immediately prior to such subdivision shall be proportionately reduced and, in case the outstanding shares of the Common Stock of the Company shall be combined into a smaller number of shares, the Warrant Price in effect immediately prior to such combination shall be proportionately increased.
D. Upon each adjustment of the Warrant Price pursuant to the provisions of this Section 8, the Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, as set forth hereinafter.
(a) On each date this Warrant is exercised pursuant to the terms hereof, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If the Company shall, at any time or from time to time while this Warrant is outstanding, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which issuable upon the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this each Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately Price in effect prior to (but not including) the date on which such change shall become effective adjustment by a fraction, the numerator of which is shall be the number of shares of Common Shares outstanding immediately after giving Stock covered by the warrant and dividing the product so obtained by the adjusted Warrant Price.
E. Except upon consolidation or reclassification of the shares of Common Stock of the Company as provided for in subsection C hereof and except for readjustment of the Warrant Price upon expiration of warrants, rights or options as provided for in subparagraph (c) of paragraph 3 of subsection B hereof, the Warrant Price in effect to such at any time may not be adjusted upward or increased in any manner whatsoever.
F. Irrespective of any adjustment or change and in the denominator of which shall be Warrant Price or the number of shares of Common Shares outstanding immediately prior Stock actually purchasable under the several Warrants, the Warrants theretofore and thereafter issued may continue to such change. Such adjustments shall be made successively whenever any event listed above shall occurexpress the Warrant Price per share and the number of shares purchasable thereunder as the Warrant Price per share and the number of shares purchasable were expressed in the Warrants when initially issued.
(c) G. If any (i) capital reorganization or reclassification of the share capital stock of the Company, Company (iiother than a distribution of stock in accordance with Section 10.B) consolidation, amalgamation or consolidation or merger of the Company with another company in which corporation or the Company is not the survivor, (iii) sale, transfer or other disposition sale of all or substantially all of the Company’s its assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), corporation shall be effected, then, as a condition of such Fundamental Transactionreorganization, reclassification, consolidation, or merger or sale, lawful and adequate provision shall be made whereby the holder of each Warrantholder Warrant then outstanding shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions specified herein specified and in the Warrants and in lieu of the Warrant Shares shares of the Common Stock immediately theretofore issuable purchasable and receivable upon the exercise of the rights represented by each such Warrant, the highest amount such shares of such sharesstock, securities or assets as would have been issuable may be issued or payable with respect to or in exchange for a number of Warrant Shares outstanding shares of such Common Stock equal to the number of Warrant Shares shares of such Common Stock immediately theretofore issuable purchasable and receivable upon the exercise of the Warrant, rights represented by each such Warrant had such Fundamental Transaction reorganization, reclassification, consolidation, merger or sale not taken place, and in any such case appropriate provision provisions shall be made with respect to the rights and interests interest of the holder of each Warrantholder Warrant then outstanding to the end that the provisions hereof thereof (including, including without limitation, provision limitation provisions for adjustment of the Warrant PricePrice and of the number of shares purchasable upon the exercise of each Warrant then outstanding) shall thereafter be applicable, applicable as nearly equivalent as may be practicable in relation to any sharesshares of stock, securities or assets thereafter deliverable upon the exercise hereof. The Company of each Warrant.
H. No adjustment of the Warrant Price shall not effect any such Fundamental Transaction unless prior to or simultaneously be made in connection with the consummation thereof the successor company (if other than the Company) resulting from such consolidationissuance or sale of shares of Common Stock issuable pursuant to currently outstanding options and warrants granted to officers, amalgamation or mergerdirectors, employees, advisory directors, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing on the books affiliates of the Company, shares, securities or assets as, in accordance with the foregoing provisions, the Warrantholder may be entitled to purchase, and the other obligations under this Warrant. The provisions of this paragraph (c) shall similarly.
Appears in 1 contract
Warrant Price; Adjustments. Subject and pursuant to the provisions of this Section 8, the Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, as set forth hereinafter.
(a) On each date this Warrant is exercised pursuant to the terms hereof, the Warrant Price per Warrant Share The warrant price at which Common Stock shall be determined as set forth in Exhibit A (as such dollar amount purchasable upon the exercise of the Warrants shall be $5.40 per share may or after adjustment, as provided in this Section, shall be such price as so adjusted pursuant to this Section 8, (the “"Warrant Price”").
(b) If the Company shall, at any time or The Warrant Price shall be subject to adjust- ment from time to time while this Warrant is outstanding, as follows:
(i) In case the Company shall at any time after the date hereof pay a dividend in shares of Common Stock or make a distribution on its in shares of Common Shares Stock, then upon such dividend or distribution the Warrant Price in Common Shares, subdivide its issued and outstanding Common Shares into effect immediately prior to such dividend or distribution shall forthwith be reduced to a greater price determined by dividing:
(A) an amount equal to the total number of shares of Common Stock outstanding immediately prior to such dividend or combine its issued and outstanding Common Shares into a smaller distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by
(B) the total number of shares of Common Stock outstanding immediately after such issuance or issue sale. For the purposes of any computation to be made in accordance with the provisions of this Section 9(b)(i), the following provisions shall be applicable: Common Stock issuable by reclassification way of its dividend or other distribution on any stock of the Company shall be deemed to have been issued and immediately after the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution.
(ii) In case the Company shall at any time subdivide or combine the outstanding Common Shares any Stock, the Warrant Price shall forthwith be proportionately decreased in the case of its share capital subdivision or increased in the case of combination to the nearest one cent. Any such adjustment shall become effective at the time such subdivision or combination shall become effective.
(including iii) Within a reasonable time after the close of each quarterly fiscal period of the Company during which the Warrant Price has been adjusted as herein provided, the Company shall:
(A) file with the Warrant Agent a cer- tificate signed by the Chief Executive Officer, President or Vice President of the Company and by the Treasurer or Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, showing in detail the facts requiring all such adjustments occurring during such period and the Warrant Price after each such adjustment; and
(B) the Warrant Agent shall have no duty with respect to any such reclassification certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours, and the Warrant Agent may conclusively rely upon the latest certificate furnished to it hereunder. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in connection making any such adjustment, or with respect to the nature or extent of the property or securities deliverable hereunder. In the absence of a certificate having been furnished, the Warrant Agent may conclusively rely upon the provisions of the Warrants with respect to the Common Stock deliverable upon the exercise of the Warrants and the applicable Warrant Price thereof.
(iv) Notwithstanding anything contained herein to the contrary, no adjustment of the Warrant Price shall be made if the amount of such adjustment shall be less than $.05, but in such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to not less than $.02.
(v) In the event that the number of outstanding shares of Common Stock is increased by a stock dividend payable in Common Stock or by a subdivision of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to Subsection (b) of this Section by reason of such dividend or subdivision, the number of shares of Common Stock issuable upon the exercise of each Warrant shall be increased in proportion to such increase in outstanding shares. In the event that the number of shares of Common Stock outstanding is decreased by a combination of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to this Section 9(b) by reason of such combination, the number of shares of Common Stock issuable upon the exercise of each Warrant shall be decreased in proportion to such decrease in the outstanding shares of Common Stock.
(vi) In case of any reorganization or reclassifi- cation of the outstanding Common Stock (other than a change in par value, or from par value to no par value, or as a result of a subdivision or combination), or in case of any consolidation of the Company with, or merger of the Company into, another corpora- tion (other than a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but corporation and which does not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever result in any event listed above shall occur.
(c) If any (i) capital reorganization or reclassification of the share capital of the Company, (ii) consolidation, amalgamation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”Stock), shall be effectedor in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, then, as a condition the holder of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder Warrant then outstanding shall thereafter have the right to purchase the kind and receive amount of shares of Common Stock and other securities and property receivable upon the basis and upon the terms and conditions herein specified and in lieu such reorganization, reclassification, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock which the holder of such Warrant Shares immediately theretofore issuable shall then be entitled to purchase; such adjustments shall apply with respect to all such changes occurring between the date of this Warrant Agreement and the date of exercise of such Warrant.
(vii) Subject to the provisions of this Section 9, in case the Company shall, at any time prior to the exercise of the Warrants, make any distribution of its assets to holders of its Common Stock as a liquidating or a partial liquidating dividend, then the holder of Warrants who exercises its Warrants after the record date for the determination of those holders of Common Stock entitled to such distribution of assets as a liquidating or partial liquidating dividend shall be entitled to receive for the Warrant Price per Warrant, in addition to each share of Common Stock, the amount of such distribution (or, at the option of the Company, a sum equal to the value of any such assets at the time of such distribution as determined by the Board of Directors of the Company in good faith), which would have been payable to such holder had he been the holder of record of the Common Stock receivable upon exercise of its Warrant on the Warrantrecord date for the determination of those entitled to such distribution.
(viii) In case of the dissolution, liquidation or winding up of the highest amount Company, all rights under the Warrants shall terminate on a date fixed by the Company, such date to be no earlier than ten (10) days prior to the effectiveness of such sharesdissolution, securities liquidation or assets as would have been issuable or payable with respect winding up and not later than five (5) days prior to or in exchange for a number such effectiveness. Notice of Warrant Shares equal such termination of purchase rights shall be given to the number of Warrant Shares immediately theretofore issuable upon exercise last registered holder of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) shall thereafter be applicableWarrants, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company same shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing appear on the books of the Company maintained by the Warrant Agent, by registered mail at least thirty (30) days prior to such termination date.
(ix) In case the Company shall, at any time prior to the expiration of the Warrants and prior to the exercise thereof, offer to the holders of its Common Stock any rights to subscribe for additional shares of any class of the Company, sharesthen the Company shall give written notice thereof to the last registered holder thereof not less than thirty (30) days prior to the date on which the books of the Company are closed or a record date is fixed for the determination of the stockholders entitled to such subscription rights. Such notice shall specify the date as to which the books shall be closed or record date fixed with respect to such offer of subscription and the right of the holder thereof to participate in such offer of subscription shall terminate if the Warrant shall not be exercised on or before the date of such closing of the books or such record date.
(x) Any adjustment pursuant to the aforesaid pro- visions of this Section 9 shall be made on the basis of the number of shares of Common Stock which the holder thereof would have been entitled to acquire by the exercise of the Warrant immediately prior to the event giving rise to such adjustment.
(xi) Irrespective of any adjustments in the Warrant Price or the number or kind of shares purchasable upon exercise of the Warrants, securities Warrants previously or assets asthereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Warrants initially issuable pursuant to this Warrant Agreement.
(xii) The Company may retain a firm of independent public accountants (who may be any such firm regularly employed by the Company) to make any computation required under this Section 9, in accordance with and any certificate setting forth such computation signed by such firm shall be conclusive evidence of the foregoing provisionscorrectness of any computation made under this Section 9.
(xiii) If at any time, as a result of an adjustment made pursuant to Section 9(b)(vi) above, the Warrantholder may be holders of a Warrant or Warrants shall become entitled to purchasepurchase any securities other than shares of Common Stock, thereafter the number of such securities so purchasable upon exercise of each Warrant and the other obligations under this Warrant. The Warrant Price for such shares shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions of this paragraph with respect to the Common Stock contained in Sections 9(b)(ii) through (c) shall similarlyv).
Appears in 1 contract
Warrant Price; Adjustments. Subject and pursuant to (a) The warrant price at which Common Stock shall be purchasable upon the provisions exercise of the Warrants shall be $6.60 per share or after adjustment, as provided in this Section 8Section, shall be such price as so adjusted (the "Warrant Price").
(b) The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to timetime as follows:
(i) In case the Company shall at any time after the date hereof pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, as set forth hereinafterthen upon such dividend or distribution the Warrant Price in effect immediately prior to such dividend or distribution shall forthwith be reduced to a price determined by dividing:
(A) an amount equal to the total number of shares of Common Stock outstanding immediately prior to such dividend or distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by
(B) the total number of shares of Common Stock outstanding immediately after such issuance or sale. For the purposes of any computation to be made in accordance with the provisions of this Section 9(b)(i), the following provisions shall be applicable: Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution.
(aii) On each date this Warrant is exercised pursuant to In case the terms hereofCompany shall at any time subdivide or combine the outstanding Common Stock, the Warrant Price per shall forthwith be proportionately decreased in the case of subdivision or increased in the case of combination to the nearest one cent. Any such adjustment shall become effective at the time such subdivision or combination shall become effective.
(iii) Within a reasonable time after the close of each quarterly fiscal period of the Company during which the Warrant Share Price has been adjusted as herein provided, the Company shall:
(A) file with the Warrant Agent a certificate signed by the Chief Executive Officer, President or Vice President of the Company and by the Treasurer or Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, showing in detail the facts requiring all such adjustments occurring during such period and the Warrant Price after each such adjustment; and
(B) the Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours, and the Warrant Agent may conclusively rely upon the latest certificate furnished to it hereunder. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making any such adjustment, or with respect to the nature or extent of the property or securities deliverable hereunder. In the absence of a certificate having been furnished, the Warrant Agent may conclusively rely upon the provisions of the Warrants with respect to the Common Stock deliverable upon the exercise of the Warrants and the applicable Warrant Price thereof.
(iv) Notwithstanding anything contained herein to the contrary, no adjustment of the Warrant Price shall be determined as set forth made if the amount of such adjustment shall be less than $.05, but in Exhibit A such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to not less than $.
(as v) In the event that the number of outstanding shares of Common Stock is increased by a stock dividend payable in Common Stock or by a subdivision of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to Subsection (b) of this Section by reason of such dollar amount per share may dividend or subdivision, the number of shares of Common Stock issuable upon the exercise of each Warrant shall be increased in proportion to such increase in outstanding shares. In the event that the number of shares of Common Stock outstanding is decreased by a combination of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to this Section 89(b) by reason of such combination, the “number of shares of Common Stock issuable upon the exercise of each Warrant Price”)shall be decreased in proportion to such decrease in the outstanding shares of Common Stock.
(bvi) If In case of any reorganization or reclassification of the outstanding Common Stock (other than a change in par value, or from par value to no par value, or as a result of a subdivision or combination), or in case of any consolidation of the Company shallwith, at any time or from time to time while this Warrant is outstandingmerger of the Company into, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital another corporation (including any such reclassification in connection with other than a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but corporation and which does not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever result in any event listed above shall occur.
(c) If any (i) capital reorganization or reclassification of the share capital of the Company, (ii) consolidation, amalgamation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”Stock), shall be effectedor in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, then, as a condition the holder of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder Warrant then outstanding shall thereafter have the right to purchase the kind and receive amount of shares of Common Stock and other securities and property receivable upon the basis and upon the terms and conditions herein specified and in lieu such reorganization, reclassification, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock which the holder of such Warrant Shares immediately theretofore issuable shall then be entitled to purchase; such adjustments shall apply with respect to all such changes occurring between the date of this Warrant Agreement and the date of exercise of such Warrant.
(vii) Subject to the provisions of this Section 9, in case the Company shall, at any time prior to the exercise of the Warrants, make any distribution of its assets to holders of its Common Stock as a liquidating or a partial liquidating dividend, then the holder of Warrants who exercises its Warrants after the record date for the determination of those holders of Common Stock entitled to such distribution of assets as a liquidating or partial liquidating dividend shall be entitled to receive for the Warrant Price per Warrant, in addition to each share of Common Stock, the amount of such distribution (or, at the option of the Company, a sum equal to the value of any such assets at the time of such distribution as determined by the Board of Directors of the Company in good faith), which would have been payable to such holder had he been the holder of record of the Common Stock receivable upon exercise of its Warrant on the Warrantrecord date for the determination of those entitled to such distribution.
(viii) In case of the dissolution, liquidation or winding up of the highest amount Company, all rights under the Warrants shall terminate on a date fixed by the Company, such date to be no earlier than ten (10) days prior to the effectiveness of such sharesdissolution, securities liquidation or assets as would have been issuable or payable with respect winding up and not later than five (5) days prior to or in exchange for a number such effectiveness. Notice of Warrant Shares equal such termination of purchase rights shall be given to the number of Warrant Shares immediately theretofore issuable upon exercise last registered holder of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) shall thereafter be applicableWarrants, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company same shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing appear on the books of the Company maintained by the Warrant Agent, by registered mail at least thirty (30) days prior to such termination date.
(ix) In case the Company shall, at any time prior to the expiration of the Warrants and prior to the exercise thereof, offer to the holders of its Common Stock any rights to subscribe for additional shares of any class of the Company, shares, securities then the Company shall give written notice thereof to the last registered holder thereof not less than thirty (30) days prior to the date on which the books of the Company are closed or assets as, in accordance with a record date is fixed for the foregoing provisions, determination of the Warrantholder may be stockholders entitled to purchase, such subscription rights. Such notice shall specify the date as to which the books shall be closed or record date fixed with respect to such offer of subscription and the other obligations under this Warrant. The right of the holder thereof to participate in such offer of subscription shall terminate if the Warrant shall not be exercised on or before the date of such closing of the books or such record date.
(x) Any adjustment pursuant to the aforesaid provisions of this paragraph (c) Section 9 shall similarlybe made on the basis of the number of shares of Common Stock which the holder thereof would have been entitled to acquire by the exercise of the Warrant immediately prior to the event giving rise to such adjustment.
Appears in 1 contract
Warrant Price; Adjustments. Subject and pursuant to the provisions of this Section 8, the Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, as set forth hereinafter.
(a) On The price at which each date this Warrant is exercised pursuant to the terms hereof, the Warrant Price per Warrant Share share of Common Stock shall be determined purchasable upon the exercise of the Warrants shall be $14.75 at any time from [ ] until 4:00 p.m. eastern time on , 2009 or after adjustment, as set forth provided in Exhibit A this Section, shall be such price as so adjusted (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If the Company shall, at any time or The Warrant Price shall be subject to adjustment from time to time while this Warrant is outstanding, as follows:
(i) In case the Company shall at any time after the date hereof pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, then upon such dividend or distribution the Warrant Price in effect immediately prior to such dividend or distribution shall forthwith be reduced to a price determined by dividing:
(A) an amount equal to the total number of shares of Common Stock outstanding immediately prior to such dividend or distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by
(B) the total number of shares of Common Stock outstanding immediately after such issuance or sale. For the purposes of any computation to be made in accordance with the provisions of this clause:
(i) The following provisions shall be applicable: Common Stock issuable by way of dividend or other distribution on its any stock of the Company shall be deemed to have been issued immediately after the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution.
(ii) In case the Company shall at any time subdivide or combine the outstanding Common Shares Stock, the Warrant Price shall forthwith be proportionately decreased in the case of subdivision or increased in the case of combination to the nearest one cent. Any such adjustment shall become effective at the time such subdivision or combination shall become effective.
(iii) Within a reasonable time after the close of each quarterly fiscal period of the Company during which the Warrant Price has been adjusted as herein provided, the Company shall file with the Warrant Agent a certificate signed by the President or Vice President of the Company and by the Treasurer or Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, showing in detail the facts requiring all such adjustments occurring during such period and the Warrant Price after each such adjustment.
(A) The Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours, and the Warrant Agent may conclusively rely upon the latest certificate furnished to it hereunder. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making any such adjustment, or with respect to the nature or extent of the property or securities deliverable hereunder. In the absence of a certificate having been furnished, the Warrant Agent may conclusively rely upon the provisions of the Warrants with respect to the Common Stock deliverable upon the exercise of the Warrants and the applicable Warrant Price thereof.
(B) Notwithstanding anything contained herein to the contrary, no adjustment of the Warrant Price shall be made if the amount of such adjustment shall be less than $[ ], but in such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to not less than $[ ].
(c) In the event that the number of outstanding shares of Common Stock is increased by a stock dividend payable in Common SharesStock or by a subdivision of the outstanding Common Stock, subdivide its then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to Subsection (b) of this Section by reason of such dividend or subdivision, the number of shares of Common Stock issuable upon the exercise of each Warrant shall be increased in proportion to such increase in outstanding shares. In the event that the number of shares of Common Stock outstanding is decreased by a combination of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to Subsection (b) of this Section by reason of such combination, the number of shares of Common Stock issuable upon the exercise of each Warrant shall be decreased in proportion to such decrease in the outstanding shares of Common Stock.
(d) In case of any reorganization or reclassification of the issued and outstanding Common Shares into Stock (other than a greater number change in par value, or from par value to no par value, or as a result of shares a subdivision or combine its issued and outstanding Common Shares into a smaller number combination), or in case of shares any consolidation of the Company with, or issue by reclassification merger of its issued and outstanding Common Shares any of its share capital the Company into, another corporation (including any such reclassification in connection with other than a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but corporation and which does not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever result in any event listed above shall occur.
(c) If any (i) capital reorganization or reclassification of the share capital of the Company, (ii) consolidation, amalgamation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”Stock), shall be effectedor in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, then, as a condition the holder of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder Warrant then outstanding shall thereafter have the right to purchase the kind and amount of shares of Common Stock and/or other securities and property receivable upon such reorganization, reclassification, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock which the holder of such Warrant shall then be entitled to purchase; such adjustments shall apply with respect to all such changes occurring between the date of this Warrant Agreement and the date of exercise of such Warrant.
(e) Subject to the provisions of this Section 9, in case the Company shall, at any time prior to the exercise of the Warrants, make any distribution of its assets to holders of its Common Stock as a liquidating dividend, then the holder of Warrants who exercises his Warrants after the record date for the determination of those holders of Common Stock entitled to such distribution of assets as a liquidating dividend shall be entitled to receive for the Warrant Price per Warrant, in addition to each share of Common Stock, the amount of such distribution (or, at the option of the Company, a sum equal to the value of any such assets at the time of such distribution as determined by the Board of Directors of the Company in good faith), which would have been payable to such holder had he been the holder of record of the Common Stock receivable upon exercise of his Warrant on the record date for the determination of those entitled to such distribution.
(f) In case of the dissolution, liquidation or winding-up of the Company, all rights under the Warrants shall terminate on a date fixed by the Company, such date to be no earlier than ten (10) days prior to the effectiveness of such dissolution, liquidation or winding-up and not later than five (5) days prior to such effectiveness. Notice of such termination of purchase rights shall be given to the last registered holder of the Warrants, as the same shall appear on the books of the Company maintained by the Warrant Agent, by registered mail at least thirty (30)days prior to such termination date.
(g) In case the Company shall, at any time prior to the expiration of the Warrants and prior to the exercise thereof, offer to the holders of its Common Stock any rights to subscribe for additional shares of any class of the Company, then the Company shall give written notice thereof to the last registered holder thereof not less than thirty (30) days prior to the date on which the books of the Company are closed or a record date is fixed for the determination of the stockholders entitled to such subscription rights. Such notice shall specify the date as to which the books shall be closed or record date fixed with respect to such offer of subscription and the right of the holder thereof to participate in such offer of subscription shall terminate if the Warrant shall not be exercised on or before the date of such closing of the books or such record date.
(h) Any adjustment pursuant to the aforesaid provisions shall be made on the basis and upon of the terms and conditions herein specified and in lieu number of shares of Common Stock which the holder thereof would have been entitled to acquire by the exercise of the Warrant Shares immediately theretofore prior to the event giving rise to such adjustment.
(i) Irrespective of any adjustments in the Warrant Price or the number or kind of shares purchasable upon exercise of the Warrants, Warrants previously or thereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Warrants initially issuable pursuant to this Warrant Agreement.
(j) The Company may retain a firm of independent public accountants (who may be any such firm regularly employed by the Company) to make any computation required under this Section, and any certificate setting forth such computation signed by such firm shall be conclusive evidence of the correctness of any computation made under this Section.
(k) If at any time, as a result of an adjustment made pursuant to paragraph (d) above, the holders of a Warrant or Warrants shall become entitled to purchase any securities other than shares of Common Stock, thereafter the number of such securities so purchasable upon exercise of each Warrant and the Warrant Price for such shares shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in paragraphs (b) and (c).
(l) No adjustment to the Purchase Price of the Warrants or to the number of shares of Common Stock purchasable upon the exercise of such Warrants will be made, however under the following circumstances:
(i) upon the sale or exercise of the Warrants; or
(ii) upon purchase of the 2,400,000 Units by the Representatives and Underwriters pursuant to the Representative’s Option as otherwise described in the Company’s prospectus dated , 2004; or
(iii) upon exercise or sale of the Warrants issuable upon exercise of the Warrant, the highest amount of such shares, securities or assets as would have been issuable or payable with respect Representative’s Option; or
(iv) upon any amendment to or change in exchange the term of any rights or warrants to subscribe for a number or purchase, or options for the purchase of Warrant Shares equal to the number Common Stock or convertible securities, including, but not limited to, any extension of Warrant Shares immediately theretofore issuable upon any expiration date of any such right, warrant or option, any change in any exercise of the Warrant, had such Fundamental Transaction not taken place, and or purchase price provided for in any such case appropriate provision shall be made with respect to right, warrant or option, any extension of any date through which any convertible securities are convertible into or exchangeable for Common Stock or any change in the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision rate at which any convertible securities are convertible into or exchangeable for adjustment of the Warrant Price) shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing on the books of the Company, shares, securities or assets as, in accordance with the foregoing provisions, the Warrantholder may be entitled to purchase, and the other obligations under this Warrant. The provisions of this paragraph (c) shall similarlyCommon Stock.
Appears in 1 contract
Warrant Price; Adjustments. Subject (a) The price at which Common Stock shall be purchasable upon exercise of Warrants at any time after the Common Stock and pursuant Warrants become separately tradable until _______________, 2003 shall be $____ per share of Common Stock (hereinafter called the "Warrant Price") or, if adjusted as provided in this Section, shall be such price as so adjusted. The Common Stock and Warrants shall become separately tradable on _______________, 1999, unless earlier separated upon ten days prior written notice from Tejas Securities Group, Inc., a Representative of the Underwriters, to the provisions of this Section 8, the Company.
(b) The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, time as set forth hereinafter.follows:
(ai) On each date this Warrant is exercised pursuant to the terms hereofExcept as hereafter provided, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If case the Company shall, shall at any time or from time to time while after the date hereof until __________, 2003 issue any additional shares of Common Stock, for a consideration per share less than the Warrant Price in effect immediately prior to the issuance of such additional shares, or without consideration, then, upon each such issuance, the Warrant Price in effect immediately prior to the issuance of such additional shares shall forthwith be reduced to price (calculated to the nearest full cent) determined by dividing:
(1) An amount equal to (i) the total number of shares of Common Stock outstanding immediately prior to such issuance multiplied by the Warrant Price in effect immediately prior to such issuance, plus (ii) the consideration, if any, received by the Company upon such issuance, by
(2) The total number of shares of Common Stock outstanding immediately after the issuance of such additional shares;
(ii) Company shall not be required to make any such adjustment of the Warrant Price in accordance with the foregoing if the amount of such adjustment shall be less than $0.25 (adjustment will be made when cumulative adjustment equals or exceeds $0.25) but in such case the Company shall maintain a cumulative record of the Warrant Price as it would have been in the absence of this provision (the "Constructive Warrant Price"), and for the purpose of computing a new Warrant Pric after the next subsequent issuance of additional shares (but not for the purpose of determining whether an adjustment thereof is outstandingrequired under the terms of this paragraph) the constructive Warrant Price shall be deemed to be the Warrant Price in effect immediately prior to such issuance.
(iii) For the purpose of this Section 8 the following provisions shall also be applicable:
(1) In the case of the issuance of additional shares of Common Stock for cash, pay the consideration received by the Company therefor shall be deemed to be the net cash proceeds received by the Company for such shares before deducting any commissions or other expenses paid or incurred by the Company for any underwriting of, or otherwise in connection with, the issuance of such shares.
(2) In case of the issuance (otherwise than upon conversion or exchange of shares of Common Stock) of additional shares of Common Stock for a consideration other than cash or a consideration a part of which shall be other than cash, the amount of the consideration other than cash received by the Company for such shares shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company, as of the date of the adoption of the resolution of said Board, providing for the issuance of such shares for consideration other than cash or for consideration a part of which shall be other than cash, such fair value to include goodwill and other intangibles to the extent determined in good faith by the Board.
(3) In case of the issuance by the Company after the date hereof of any security (other than the Warrants) that is convertible into shares of Common Stock or of any warrants, rights or options to purchase shares of Common Stock (except the options and warrants referred to in subsection (h) of this Section 8), (i) the Company shall be deemed (as provided in subparagraph (5) below) to have issued the maximum number of shares of Common Stock deliverable upon the exercise of such conversion privileges or warrants, rights or options, and (ii) the consideration therefor shall be deemed to be the consideration received by the Company for such convertible securities or for such warrants, rights or options, as the case may be, before deducting therefrom any expenses or commissions incurred or paid by the Company for any underwriting of, or otherwise in connection with, the issuance of such convertible security or warrants, rights or options, plus (A) the minimum consideration or adjustment payment to be received by the Company in connection with such conversion, or (B) the minimum price at which shares of Common Stock are to be delivered upon exercise of such warrants, rights or options or, if no minimum price is specified and such shares are to be delivered at an option price related to the market value of the subject shares, an option price bearing the same relation to the market value of the subject shares at the time such warrants, rights or options were granted; provided that as to such options such further adjustment as shall be necessary on the basis of the actual option price at the time of exercise shall be made at such time if the actual option price is less than the aforesaid assumed option price. No further adjustment of the Warrant Price shall be made as a result of the actual issuance of the shares of Common Stock referred to in this subparagraph (3). On the expiration of such warrants, rights or options, or the termination of such right to convert, the Warrant Price shall be readjusted to such Warrant Price as would have pertained had the adjustments made upon the issuance of such warrants, rights, options or convertible securities been made upon the basis of the delivery of only the number of shares of Common Stock actually delivered upon the exercise of such warrants, rights or options or upon the conversion of such securities.
(4) For the purposes hereof, any additional shares of Common Stock issued as a stock dividend shall be deemed to have been issued for no consideration.
(5) The number of shares of Common Stock at any time outstanding shall include the aggregate number of shares deliverable in respect of the convertible securities, rights and options referred to in subparagraph (3) of this paragraph; provided that with respect to shares referred to in clause (i) of subparagraph (3), to the extent that such warrants, options, rights or make a distribution on its Common Shares in Common Sharesconversion privileges are not exercised, such shares shall be deemed to be outstanding only until the expiration dates of the warrants, rights, options or conversion privileges or the prior cancellation thereof.
(c) In case the Company shall at any time subdivide its issued and outstanding shares of Common Shares Stock into a greater number of shares, the Warrant Price in effect immediately prior to such subdivision shall be proportionately reduced and, in case the outstanding shares or combine its issued and outstanding of the Common Shares Stock of the Company shall be combined into a smaller number of shares or issue by reclassification shares, the Warrant Price in effect immediately prior to such combination shall be proportionately increased.
(d) Upon adjustment of its issued and outstanding Common Shares any the Warrant Price pursuant to the provisions of its share capital subsection (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing company)c) of this Section 8, then the number of Warrant Shares purchasable shares issuable upon the exercise of this each Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately Price in effect prior to (but not including) the date on which such change shall become effective adjustment by a fraction, the numerator of which is shall be the number of shares of Common Shares outstanding immediately after giving Stock covered by the Warrant and dividing the product so obtained by the adjusted Warrant Price.
(e) Except upon consolidation or reclassification of the shares of Common Stock of the Company as provided for in subsection (c) hereof and except for readjustment of the Warrant Price upon expiration of warrants, rights or options as provided for in subparagraph (3) of paragraph (iii) of subsection (b) hereof, the Warrant Price in effect to such at any time may not be adjusted upward or increased in any manner whatsoever.
(f) Irrespective of any adjustment or change and in the denominator of which shall be Warrant Price or the number of shares of Common Shares outstanding immediately prior Stock actually purchasable under the several Warrants, the Warrants theretofore and thereafter issued may continue to such change. Such adjustments shall be made successively whenever any event listed above shall occurexpress the Warrant Price per share and the number of shares purchasable thereunder as the Warrant Price per share and the number of shares purchasable were expressed in the Warrants when initially issued.
(cg) If any (i) capital reorganization or reclassification of the share capital stock of the Company, Company (iiother than a distribution of stock in accordance with Section 10(b)) consolidation, amalgamation or consolidation or merger of the Company with another company in which corporation or the Company is not the survivor, (iii) sale, transfer or other disposition sale of all or substantially all of the Company’s its assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), corporation shall be effected, then, as a condition of such Fundamental Transactionreorganization, reclassification, consolidation, merger or sale, lawful and adequate provision shall be made whereby the holder of each Warrantholder Warrant then outstanding shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions specified herein specified and in the Warrants and in lieu of the Warrant Shares shares of the Common Stock of the Company immediately theretofore issuable purchasable and receivable upon the exercise of the rights represented by each such Warrant, the highest amount such shares of such sharesstock, securities or assets as would have been issuable may be issued or payable with respect to or in exchange for a number of Warrant Shares outstanding shares of such Common Stoc equal to the number of Warrant Shares shares of such Common stock immediately theretofore issuable purchasable and receivable upon the exercise of the Warrant, rights represented by each such Warrant had such Fundamental Transaction reorganization, reclassification, consolidation, merger or sale not taken place, and in any such case appropriate provision provisions shall be made with respect to the rights and interests interest of the holder of each Warrantholder Warrant then outstanding to the end that the provisions hereof thereof (including, including without limitation, provision limitation provisions for adjustment of the Warrant PricePrice and of the number of shares purchasable upon the exercise of each Warrant then outstanding) shall thereafter be applicable, applicable as nearly equivalent as may be practicable in relation to any sharesshares of stock, securities or assets thereafter deliverable upon the exercise of each Warrant.
(h) No adjustment of the Warrant Price shall be made in connection with the issuance or sale of shares of Common Stock issuable pursuant to (i) currently outstanding options and warrants of the Company or (ii) options granted to officers, directors, employees or advisory directors of the Company pursuant to the Company's 1997 Stock Incentive Plan or 1996 Directors' Stock Option Plan (each, a "Plan"), as each Plan may be amended from time to time, provided that the aggregate number o such options granted by the Company pursuant to each Plan does not exceed the number of unissued options authorized under each Plan as of the date hereof. The .
(i) Whenever the Warrant Price is adjusted as herein provided, the Company shall not effect any such Fundamental Transaction unless prior to or simultaneously forthwith file with the consummation thereof Warrant Agent a certificate signed by the successor company (if other than Chairman of the Company) resulting from such consolidation, amalgamation Board or merger, a President or a Vice President of the Company and by the Treasurer or an Assistant Treasurer or the company purchasing Secretary or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing on the books an Assistant Secretary of the Company, sharesshowing in detail the facts requiring such adjustment and the Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants after such adjustment. The Company, securities at its option, may cause a copy of such notice to be sent by first class mail, postage prepaid, to each registered holder of Warrants at his address appearing on the Warrant register. The Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours. The Warrant Agent shall not at any time be under any duty or assets asresponsibilit to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making such adjustment.
(j) The Company may retain a firm of independent certified public accountants of recognized standing (which may be the firm that regularly examines the financial statements of the Company) selected by the Board of Directors of the Company or the Executive Committee, of said Board and approved by the Warrant Agent, to make any computation required under this Section 8, and a certificate signed by such firm shall be conclusive evidence of the correctness of any computation made under this Section 8.
(k) In case at any time conditions shall arise by reason of action taken by the Company which, in accordance with the foregoing provisionsopinion of the Board of Directors of the Company, the Warrantholder may be entitled to purchase, and are not adequately covered by the other obligations under this Warrant. The provisions of this paragraph Agreement and which might materially and adversely affect the rights of the holders of the Warrants, or in case at any time any such conditions are expected to arise by reason of any action contemplated by the Company, the Board of Directors of the Company shall appoint a fir of independent certified public accountants of recognized standing (cwhich may be the firm that regularly examines the financial statements of the Company), who shall give their opinion as to the adjustment, if any (not inconsistent with the standards established in this Section 8), of the Warrant Price and the number of shares of Common Stock purchasable pursuant hereto (including, if necessary, any adjustment as to the property which may be purchasable in lieu thereof upon exercise of the Warrants) which is, or would be, required to preserve without dilution the rights of the holders of the Warrants. The Board of Directors of the Company shall similarlymake the adjustment recommended forthwith upon the receipt of such opinion or the taking of any such action contemplated, as the case may be; provided, however, that no adjustment of the Warrant Price shall be made which in the opinion of the accountant or firm of accountants giving the aforesaid opinion would result in an increase of the Warrant Price to more than the Warrant Price then in effect except as otherwise provided in subsection (e) of this Section 8.
Appears in 1 contract
Warrant Price; Adjustments. Subject A. The price at which Common Stock shall be purchasable upon exercise of Warrants at any time after the Common Stock and Warrants become separately tradable until ____________, 2003 (hereinafter called(the "Warrant Price") shall be $_____ per share of common stock or, if adjusted as provided in this Section, shall be such price as so adjusted.
B. The Warrant Price shall be subject to adjustment from time to time as follows:
(1) Except as hereinafter provided, in case the Company shall at any time or from time to time after the date hereof issue any additional shares of Common Stock for a consideration per share less than the Warrant Price in effect immediately prior to the issuance of such additional shares, or without consideration, then, upon each such issuance, the Warrant Price in effect immediately prior to the issuance of such additional shares shall forthwith be reduced to a price (calculated to the nearest full cent) determined by dividing:
(a) An amount equal to (i) the total number of shares of Common Stock outstanding immediately prior to such issuance multiplied by the Warrant Price in effect immediately prior to such issuance, plus (ii) the consideration. if any. received by the Company upon such issuance, by
(b) The total number of shares of Common Stock outstanding immediately after the issuance of such additional shares.
(2) The Company shall not be required to make any such adjustment of the Warrant Price in accordance with the foregoing if the amount of such adjustment shall be less than $0.05 (adjustment will be made when cumulative adjustment equals or exceeds $0.05) but in such case the Company shall maintain a cumulative record of the Warrant Price as it would have been in the absence of this provision (the "Constructive Warrant Price"), and for the purpose of computing a new Warrant Price after the next subsequent issuance of additional shares (but not for the purpose of determining whether an adjustment thereof is required under the terms of this paragraph) the constructive Warrant Price shall be deemed to be the Warrant Price in effect immediately prior to such issuance.
(3) For the purpose of this Section 8 the following provisions shall also be applicable:
(a) In the case of the issuance of additional shares of Common Stock for cash, the consideration received by the Company therefor shall be deemed to be the net cash proceeds received by the Company for such shares before deducting any commissions or other expenses paid or incurred by the Company for any underwriting of, or otherwise in connection with, the issuance of such shares.
(b) In case of the issuance (otherwise than upon conversion or exchange of shares of Common stock) of additional shares of Common Stock for a consideration other than cash or a consideration a part of which shall be other than cash, the amount of the consideration other than cash received by the Company for such shares shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company, as of the date of the adoption of the resolution of said Board, providing for the issuance of such shares for consideration other than cash or for consideration a part of which shall be other than cash, such fair value to include goodwill and other intangibles to the extent determined in good faith by the Board.
(c) In case of the issuance by the Company after the date hereof of any security (other than the Warrants) that is convertible into shares of Common Stock or of any warrants, rights or options to purchase shares of Common stock (except the options and warrants referred to in subsection H of this Section 8), (i) the Company shall be deemed (as provided in subparagraph (e) below) to have issued the maximum number of shares of Common Stock deliverable upon the exercise of such conversion privileges or warrants, rights or options, and (ii) the consideration therefor shall be deemed to be the consideration received by the Company for such convertible securities or for such warrants, rights or options, as the case may be, before deducting therefrom any expenses or commissions incurred or paid by the Company for any underwriting of, or otherwise in connection with, the issuance of such convertible security or warrants, rights or options, plus (A) the minimum consideration or adjustment payment to be received by the Company in connection with such conversion, or (B) the minimum price at which shares of Common Stock are to be delivered upon exercise of such warrants, rights or options or, if no minimum price is specified and such shares are to be delivered at an option price related to the market value of the subject shares, an option price bearing the same relation to the market value of the subject shares at the time such warrants, rights or options were granted; provided that as to such options such further adjustment as shall be necessary on the basis of the actual option price at the time of exercise shall be made at such time if the actual option price is less than the aforesaid assumed option price. No further adjustment of the Warrant Price shall be made as a result of the actual issuance of the shares of Common Stock referred to in this subparagraph (c). on the expiration of such warrants, rights or options, or the termination of such right to convert, the Warrant Price shall be readjusted to such Warrant Price as would have pertained had the adjustments made upon the issuance of such warrants, rights, options or convertible securities been made upon the basis of the delivery of only the number of shares of Common Stock actually delivered upon the exercise of such warrants, rights or options or upon the conversion of such securities.
(d) For the purposes hereof, any additional shares of Common Stock issued as a stock dividend shall be deemed to have been issued for no consideration.
(e) The number of shares of Common Stock at any time outstanding shall include the aggregate number of shares deliverable in respect of the convertible securities, rights and options referred to in subparagraph (C)(c) of this paragraph; provided that with respect to shares referred to in clause (i) of subparagraph (c), to the extent that such warrants, options, rights or conversion privileges are not exercised, such shares shall be deemed to be outstanding only until the expiration dates of the warrants, rights, options or conversion privileges or the prior cancellation thereof.
C. In case the Company shall at any time subdivide its outstanding shares of Common stock into a greater number of shares, the Warrant Price in effect immediately prior to such subdivision shall be proportionately reduced and, in case the outstanding shares of the Common Stock of the Company shall be combined into a smaller number of shares, the Warrant Price in effect immediately prior to such combination shall be proportionately increased.
D. Upon each adjustment of the Warrant Price pursuant to the provisions of this Section 8, the Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, as set forth hereinafter.
(a) On each date this Warrant is exercised pursuant to the terms hereof, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If the Company shall, at any time or from time to time while this Warrant is outstanding, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which issuable upon the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this each Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately Price in effect prior to (but not including) the date on which such change shall become effective adjustment by a fraction, the numerator of which is shall be the number of shares of Common Shares outstanding immediately after giving Stock covered by the warrant and dividing the product so obtained by the adjusted Warrant Price.
E. Except upon consolidation or reclassification of the shares of Common Stock of the Company as provided for in subsection (c) C hereof and except for readjustment of the Warrant Price upon expiration of warrants, rights or options as provided for in subparagraph (c) of paragraph 3 of subsection (B) B hereof, the Warrant Price in effect to such at any time may not be adjusted upward or increased in any manner whatsoever.
F. Irrespective of any adjustment or change and in the denominator of which shall be warrant Warrant Price or the number of shares of Common Shares outstanding immediately prior Stock actually purchasable under the several Warrants, the Warrants theretofore and thereafter issued may continue to such change. Such adjustments shall be made successively whenever any event listed above shall occurexpress the Warrant Price per share and the number of shares purchasable thereunder as the Warrant Price per share and the number of shares purchasable were expressed in the Warrants when initially issued.
(c) G. If any (i) capital reorganization or reclassification of the share capital stock of the Company, Company (iiother than a distribution of stock in accordance with Section 10(B)) consolidation, amalgamation 10.B) or consolidation or merger of the Company with another company in which corporation or the Company is not the survivor, (iii) sale, transfer or other disposition sale of all or substantially all of the Company’s its assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), corporation shall be effected, then, as a condition of such Fundamental Transactionreorganization, reclassification, consolidation, or merger or Bale sale, lawful and adequate provision shall be made whereby the holder of each Warrantholder Warrant then outstanding shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions specified herein specified and in the Warrants and in lieu of the Warrant Shares shares of the common Common Stock of the Company immediately theretofore issuable purchasable and receivable upon the exercise of the rights represented by each such warrant Warrant, the highest amount such shares of such sharesstock, securities or assets as would have been issuable may be issued or payable with respect to or in exchange for a number of Warrant Shares outstanding shares of such Common Stock equal to the number of Warrant Shares shares of such Common stock Stock immediately theretofore issuable purchasable and receivable upon the exercise of the Warrant, rights represented by each such Warrant had such Fundamental Transaction reorganization, reclassification, consolidation, merger or sale not taken place, and in any such case appropriate provision provisions shall be made with respect to the rights and interests interest of the holder of each Warrantholder Warrant then outstanding to the end that the provisions hereof thereof (including, including without limitation, provision limitation provisions for adjustment of the Warrant PricePrice and of the number of shares purchasable upon the exercise of each Warrant then outstanding) shall thereafter be applicable, applicable as nearly equivalent as may be practicable in relation to any sharesshares of stock, securities or assets thereafter deliverable upon the exercise hereof. The of each Warrant.
H. No adjustment of the Warrant Price shall be made in connection with the issuance or sale of shares of Common Stock issuable pursuant to currently outstanding options and warrants granted to officers, directors, employees, advisory directors, or affiliates of the Company.
I. Whenever the Warrant Price is adjusted as herein provided, the Company shall not effect any such Fundamental Transaction unless prior to or simultaneously (a) forthwith file with the consummation thereof Warrant Agent a certificate signed by the successor company (if other than Chairman of the Company) resulting from such consolidation, amalgamation or merger, Board or the company purchasing President or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address a Vice President of the Warrantholder appearing on Company and by the books Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, sharesshowing in detail the facts requiring such adjustment and the Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants after such adjustment and (b) cause a notice stating that such adjustment has been effected and stating the adjusted warrant Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants to be published at least once a week for two consecutive weeks in a newspaper of general circulation in Oklahoma City, securities Oklahoma and in New York, New York. The Company, at its option, may cause a copy of such notice to be sent by first class mail, postage prepaid, to each registered holder of Warrants at his address appearing on the Warrant register. The Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours. The Warrant Agent shall not at any time be under any duty or assets asresponsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making such adjustment.
J. The Company may retain a firm of independent certified public accountants of recognized standing (which may be the firm that regularly examines the financial statements of the Company) selected by the Board of Directors of the Company or the Executive Committee of said Board and approved by the Warrant Agent, to make any computation required under this Section 8, and a certificate signed by such firm shall be conclusive evidence of the correctness of any computation made under this Section 8.
K. In case at any time conditions shall arise by reason of action taken by the Company which, in accordance with the foregoing provisionsopinion of the Board of Directors of the Company, the Warrantholder may be entitled to purchase, and are not adequately covered by the other obligations under this Warrant. The provisions of this paragraph Agreement and which might materially and adversely affect the rights of the holders of the Warrants, or in case at any time any such conditions are expected to arise by reason of any action contemplated by the Company, the Board of Directors of the Company shall appoint a firm of independent certified public accountants of recognized standing (cwhich may be the firm that regularly examines the financial statements of the Company), who shall give their opinion as to the adjustment, if any (not inconsistent with the standards established in this Section 8), of the Warrant Price and the number of shares of Common Stock purchasable pursuant hereto (including, if necessary, any adjustment as to the property which may be purchasable in lieu thereof upon exercise of the Warrants) which is, or would be, required to preserve without dilution the rights of the holders of the Warrants. The Board of Directors of the Company shall similarlymake the adjustment recommended forthwith upon the receipt of such opinion or the taking of any such action contemplated, as the case may be; provided, however, that no adjustment of the Warrant Price shall be made which in the opinion of the accountant or firm of accountants giving the aforesaid opinion would result in an increase of the Warrant Price to more than the Warrant Price then in effect except as otherwise provided in subsection E of this Section 8.
Appears in 1 contract
Samples: Warrant Agreement (Holloman Corp)
Warrant Price; Adjustments. Subject A. The price at which Common Stock shall be purchasable upon exercise of Warrants at any time after the Common Stock and pursuant to Warrants become separately tradable until December 31, 2003 (hereinafter called the provisions "Warrant Price") shall be $1.00 per share of Common Stock or, if adjusted as provided in this Section 8Section, the shall be such price as so adjusted.
B. The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, time as set forth hereinafter.follows:
(a) On each date this Warrant is exercised pursuant to In case the terms hereofCompany shall at any time subdivide its outstanding shares of common Stock into a greater number of shares, the Warrant Price per Warrant Share in effect immediately prior to such subdivision shall be determined as set forth proportionately reduced and, in Exhibit A (as such dollar amount per share may case the outstanding shares of the Common Stock of the Company shall be adjusted pursuant to this Section 8combined into a smaller number of shares, the “Warrant Price”)Price in effect immediately prior to such combination shall be proportionately increased.
(b) If the Company shall, at any time or from time to time while this Warrant is outstanding, pay pays a dividend payable in, or make a any other distribution on its (except any distribution specifically provided for in the foregoing subsections (i) of Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing company)Stock, then the number of shares of Common Stock issuable pursuant to the Warrant Shares purchasable upon exercise will be adjusted, from and after the date of this Warrant shall be adjusted determination of stockholders entitled to receive such dividend or distribution of stockholders to that number of shares of Common Stock determined by multiplying the number of Warrant Shares purchasable upon exercise shares of this Warrant Common Stock issuable immediately prior to (but not including) the such date on which such change shall become effective of determination by a fraction, fraction (i) the numerator of which is shall will be the total number of shares of Common Shares Stock outstanding immediately after giving effect to such change dividend or distribution, calculated on a fully diluted basis, and (ii) the denominator of which shall will be the total number of shares of Common Shares Stock outstanding immediately prior to such change. Such adjustments shall be made successively whenever any event listed above shall occurdividend or distribution, calculated on a fully diluted basis.
(c) If any (i) capital reorganization or reclassification of the share capital stock of the Company, (ii) consolidation, amalgamation Company or consolidation or merger of the Company with another company in which corporation or the Company is not the survivor, (iii) sale, transfer or other disposition sale of all or substantially all of the Company’s its assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), corporation shall be effected, then, as a condition of such Fundamental Transactionreorganization, reclassification, consolidation, merger or sale, lawful and adequate provision shall be made whereby the holder of each Warrantholder Warrant then outstanding shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions specified herein specified and in the Warrants and in lieu of the Warrant Shares shares of the Common Stock of the Company immediately theretofore issuable purchasable and receivable upon the exercise of the rights represented by each such Warrant, the highest amount such shares of such sharesstock, securities or assets as would have been issuable may be issued or payable with respect to or in exchange for a number of Warrant Shares outstanding shares of such Common Stock equal to the number of Warrant Shares shares of such Common stock immediately theretofore issuable purchasable and receivable upon the exercise of the Warrant, rights represented by each such Warrant had such Fundamental Transaction reorganization, reclassification, consolidation, merger or sale not taken place, and in any such case appropriate provision provisions shall be made with respect to the rights and interests interest of the holder of each Warrantholder Warrant then outstanding to the end that the provisions hereof thereof (including, including without limitation, provision limitation provisions for adjustment of the Warrant PricePrice and of the number of shares purchasable upon the exercise of each Warrant then outstanding) shall thereafter be applicable, applicable as nearly equivalent as may be practicable in relation to any sharesshares of stock, securities or assets thereafter deliverable upon the exercise hereof. The of each Warrant.
(d) Irrespective of any adjustment or change in the Warrant Price or the number of shares of Common Stock actually purchasable under the several Warrants, the Warrants theretofore and thereafter issued may continue to express the Warrant Price per share and the number of shares purchasable thereunder as the Warrant Price per share and the number of shares purchasable were expressed in the Warrants when initially issued.
(e) Whenever the Warrant Price is adjusted as herein provided, the Company shall not effect any such Fundamental Transaction unless prior to or simultaneously (a) forthwith file with the consummation thereof Warrant Agent a certificate signed by the successor company (if other than Chairman of the Company) resulting from such consolidation, amalgamation or merger, Board or the company purchasing President or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address a Vice President of the Warrantholder appearing on Company and by the books Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, shares, securities or assets as, showing in accordance with detail the foregoing provisions, the Warrantholder may be entitled to purchase, facts requiring such adjustment and the other obligations under this WarrantWarrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants after such adjustment and (b) cause a notice stating that such adjustment has been effected and stating the adjusted Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants to be sent by first class mail, postage prepaid, to each registered holder of Warrants at his address appearing on the Warrant register. The provisions Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of this paragraph (c) Warrants during reasonable business hours. The Warrant Agent shall similarlynot at any time be under any duty or responsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making such adjustment.
Appears in 1 contract
Samples: Warrant Agreement (Rcontest Com Inc)
Warrant Price; Adjustments. Subject and pursuant to (a) The warrant price at which Common Stock shall be purchasable upon the provisions exercise of the Warrants shall be $5.50 per share or after adjustment, as provided in this Section 8Section, shall be such price as so adjusted (the "Warrant Price").
(b) The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to timetime as follows:
(i) In case the Company shall at any time after the date hereof pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, as set forth hereinafterthen upon such dividend or distribution the Warrant Price in effect immediately prior to such dividend or distribution shall forthwith be reduced to a price determined by dividing:
(A) an amount equal to the total number of shares of Common Stock outstanding immediately prior to such dividend or distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by
(B) the total number of shares of Common Stock outstanding immediately after such issuance or sale. For the purposes of any computation to be made in accordance with the provisions of this Section 9(b)(i), the following provisions shall be applicable: Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution.
(aii) On each date this Warrant is exercised pursuant to In case the terms hereofCompany shall at any time subdivide or combine the outstanding Common Stock, the Warrant Price per shall forthwith be proportionately decreased in the case of subdivision or increased in the case of combination to the nearest one cent. Any such adjustment shall become effective at the time such subdivision or combination shall become effective.
(iii) Within a reasonable time after the close of each quarterly fiscal period of the Company during which the Warrant Share Price has been adjusted as herein provided, the Company shall:
(A) file with the Warrant Agent a certificate signed by the Chief Executive Officer, President or Vice President of the Company and by the Treasurer or Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, showing in detail the facts requiring all such adjustments occurring during such period and the Warrant Price after each such adjustment; and
(B) the Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours, and the Warrant Agent may conclusively rely upon the latest certificate furnished to it hereunder. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making any such adjustment, or with respect to the nature or extent of the property or securities deliverable hereunder. In the absence of a certificate having been furnished, the Warrant Agent may conclusively rely upon the provisions of the Warrants with respect to the Common Stock deliverable upon the exercise of the Warrants and the applicable Warrant Price thereof.
(iv) Notwithstanding anything contained herein to the contrary, no adjustment of the Warrant Price shall be determined as set forth made if the amount of such adjustment shall be less than $.05, but in Exhibit A such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to not less than $.02.
(as v) In the event that the number of outstanding shares of Common Stock is increased by a stock dividend payable in Common Stock or by a subdivision of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to Subsection (b) of this Section by reason of such dollar amount per share may dividend or subdivision, the number of shares of Common Stock issuable upon the exercise of each Warrant shall be increased in proportion to such increase in outstanding shares. In the event that the number of shares of Common Stock outstanding is decreased by a combination of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to this Section 89(b) by reason of such combination, the “number of shares of Common Stock issuable upon the exercise of each Warrant Price”)shall be decreased in proportion to such decrease in the outstanding shares of Common Stock.
(bvi) If In case of any reorganization or reclassifi- cation of the outstanding Common Stock (other than a change in par value, or from par value to no par value, or as a result of a subdivision or combination), or in case of any consolidation of the Company shallwith, at any time or from time to time while this Warrant is outstandingmerger of the Company into, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital another corporation (including any such reclassification in connection with other than a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but corporation and which does not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever result in any event listed above shall occur.
(c) If any (i) capital reorganization or reclassification of the share capital of the Company, (ii) consolidation, amalgamation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”Stock), shall be effectedor in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, then, as a condition the holder of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder Warrant then outstanding shall thereafter have the right to purchase the kind and receive amount of shares of Common Stock and other securities and property receivable upon the basis and upon the terms and conditions herein specified and in lieu such reorganization, reclassification, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock which the holder of such Warrant Shares immediately theretofore issuable shall then be entitled to purchase; such adjustments shall apply with respect to all such changes occurring between the date of this Warrant Agreement and the date of exercise of such Warrant.
(vii) Subject to the provisions of this Section 9, in case the Company shall, at any time prior to the exercise of the Warrants, make any distribution of its assets to holders of its Common Stock as a liquidating or a partial liquidating dividend, then the holder of Warrants who exercises its Warrants after the record date for the determination of those holders of Common Stock entitled to such distribution of assets as a liquidating or partial liquidating dividend shall be entitled to receive for the Warrant Price per Warrant, in addition to each share of Common Stock, the amount of such distribution (or, at the option of the Company, a sum equal to the value of any such assets at the time of such distribution as determined by the Board of Directors of the Company in good faith), which would have been payable to such holder had he been the holder of record of the Common Stock receivable upon exercise of its Warrant on the Warrantrecord date for the determination of those entitled to such distribution.
(viii) In case of the dissolution, liquidation or winding up of the highest amount Company, all rights under the Warrants shall terminate on a date fixed by the Company, such date to be no earlier than ten (10) days prior to the effectiveness of such sharesdissolution, securities liquidation or assets as would have been issuable or payable with respect winding up and not later than five (5) days prior to or in exchange for a number such effectiveness. Notice of Warrant Shares equal such termination of purchase rights shall be given to the number of Warrant Shares immediately theretofore issuable upon exercise last registered holder of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) shall thereafter be applicableWarrants, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company same shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing appear on the books of the Company maintained by the Warrant Agent, by registered mail at least thirty (30) days prior to such termination date.
(ix) In case the Company shall, at any time prior to the expiration of the Warrants and prior to the exercise thereof, offer to the holders of its Common Stock any rights to subscribe for additional shares of any class of the Company, sharesthen the Company shall give written notice thereof to the last registered holder thereof not less than thirty (30) days prior to the date on which the books of the Company are closed or a record date is fixed for the determination of the stockholders entitled to such subscription rights. Such notice shall specify the date as to which the books shall be closed or record date fixed with respect to such offer of subscription and the right of the holder thereof to participate in such offer of subscription shall termi- nate if the Warrant shall not be exercised on or before the date of such closing of the books or such record date.
(x) Any adjustment pursuant to the aforesaid pro- visions of this Section 9 shall be made on the basis of the number of shares of Common Stock which the holder thereof would have been entitled to acquire by the exercise of the Warrant immediately prior to the event giving rise to such adjustment.
(xi) Irrespective of any adjustments in the Warrant Price or the number or kind of shares purchasable upon exercise of the Warrants, securities Warrants previously or assets asthereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Warrants initially issuable pursuant to this Warrant Agreement.
(xii) The Company may retain a firm of independent public accountants (who may be any such firm regularly employed by the Company) to make any computation required under this Section 9, in accordance with and any certificate setting forth such computation signed by such firm shall be conclusive evidence of the foregoing provisionscorrectness of any computation made under this Section 9.
(xiii) If at any time, as a result of an adjustment made pursuant to Section 9(b)(vi) above, the Warrantholder may be holders of a Warrant or Warrants shall become entitled to purchasepurchase any securities other than shares of Common Stock, thereafter the number of such securities so purchasable upon exercise of each Warrant and the other obligations under this Warrant. The Warrant Price for such shares shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions of this paragraph with respect to the Common Stock contained in Sections 9(b)(ii) through (c) shall similarlyv).
Appears in 1 contract
Warrant Price; Adjustments. Subject and pursuant to (a) The warrant price at which Common Stock shall be purchasable upon the provisions exercise of the Warrants shall be $6.00 at any time commencing on the Effective Date until five (5) years after the Effective Date, or after adjustment, as provided in this Section 8Section, shall be such price as so adjusted (the "Warrant Price").
(b) The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to timetime as follows:
(i) In case the Company shall at any time after the date hereof pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, as set forth hereinafterthen upon such dividend or distribution the Warrant Price in effect immediately prior to such dividend or distribution shall forthwith be reduced to a price determined by dividing:
(A) an amount equal to the total number of shares of Common Stock outstanding immediately prior to such dividend or distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by
(B) the total number of shares of Common Stock outstanding immediately after such issuance or sale. For the purposes of any computation to be made in accordance with the provisions of this clause:
(i) The following provisions shall be applicable: Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution.
(aii) On each date this Warrant is exercised pursuant to In case the terms hereofCompany shall at any time subdivide or combine the outstanding Common Stock, the Warrant Price per Warrant Share shall forthwith be determined as set forth proportionately decreased in Exhibit A (as the case of subdivision or increased in the case of combination to the nearest one cent. Any such dollar amount per share may be adjusted pursuant to this Section 8, adjustment shall become effective at the “Warrant Price”)time such subdivision or combination shall become effective.
(biii) If Within a reasonable time after the close of each quarterly fiscal period of the Company during which the Warrant Price has been adjusted as herein provided, the Company shall:
(A) File with the Warrant Agent a certificate signed by the President or Vice President of the Company and by the Treasurer or Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, showing in detail the facts requiring all such adjustments occurring during such period and the Warrant Price after each such adjustment; and
(B) The Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours, and the Warrant Agent may conclusively rely upon the latest certificate furnished to it hereunder. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making any such adjustment, or with respect to the nature or extent of the property or securities deliverable hereunder. In the absence of a certificate having been furnished, the Warrant Agent may conclusively rely upon the provisions of the Warrants with respect to the Common Stock deliverable upon the exercise of the Warrants and the applicable Warrant Price thereof.
(C) Notwithstanding anything contained herein to the contrary, no adjustment of the Warrant Price shall be made if the amount of such adjustment shall be less than $.05, but in such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to not less than $.05.
(c) In the event that the number of outstanding shares of Common Stock is increased by a stock dividend payable in Common Stock or by a subdivision of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to time while Subsection (b) of this Warrant is outstanding, pay a Section by reason of such dividend or make a distribution on its Common Shares in Common Sharessubdivision, subdivide its issued and outstanding Common Shares into a greater the number of shares or combine its issued and of Common Stock issuable upon the exercise of each Warrant shall be increased in proportion to such increase in outstanding Common Shares into a smaller shares. In the event that the number of shares of Common Stock outstanding is decreased by a combination of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to Subsection (b) of this Section by reason of such combination, the number of shares of Common Stock issuable upon the exercise of each Warrant shall be decreased in proportion to such decrease in the outstanding shares of Common Stock.
(d) In case of any reorganization or issue by reclassification of its issued and the outstanding Common Shares Stock (other than a change in par value, or from par value to no par value, or as a result of a subdivision or combination), or in case of any consolidation of its share capital the Company with, or merger of the Company into, another corporation (including any such reclassification in connection with other than a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but corporation and which does not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever result in any event listed above shall occur.
(c) If any (i) capital reorganization or reclassification of the share capital of the Company, (ii) consolidation, amalgamation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”Stock), shall be effectedor in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, then, as a condition the holder of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder Warrant then outstanding shall thereafter have the right to purchase the kind and amount of shares of Common Stock and/or other securities and property receivable upon such reorganization, reclassification, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock which the holder of such Warrant shall then be entitled to purchase; such adjustments shall apply with respect to all such changes occurring between the date of this Warrant Agreement and the date of exercise of such Warrant.
(e) Subject to the provisions of this Section 9, in case the Company shall, at any time prior to the exercise of the Warrants, make any distribution of its assets to holders of its Common Stock as a liquidating or a partial liquidating dividend, then the holder of Warrants who exercises his Warrants after the record date for the determination of those holders of Common Stock entitled to such distribution of assets as a liquidating or partial liquidating dividend shall be entitled to receive for the Warrant Price per Warrant, in addition to each share of Common Stock, the amount of such distribution (or, at the option of the Company, a sum equal to the value of any such assets at the time of such distribution as determined by the Board of Directors of the Company in good faith), which would have been payable to such holder had he been the holder of record of the Common Stock receivable upon exercise of his Warrant on the record date for the determination of those entitled to such distribution.
(f) In case of the dissolution, liquidation or winding-up of the Company, all rights under the Warrants shall terminate on a date fixed by the Company, such date to be no earlier than ten (10) days prior to the effectiveness of such dissolution, liquidation or winding-up and not later than five (5) days prior to such effectiveness. Notice of such termination of purchase rights shall be given to the last registered holder of the Warrants, as the same shall appear on the books of the Company maintained by the Warrant Agent, by registered mail at least thirty (30) days prior to such termination date.
(g) In case the Company shall, at any time prior to the expiration of the Warrants and prior to the exercise thereof, offer to the holders of its Common Stock any rights to subscribe for additional shares of any class of the Company, then the Company shall give written notice thereof to the last registered holder thereof not less than thirty (30) days prior to the date on which the books of the Company are closed or a record date is fixed for the determination of the stockholders entitled to such subscription rights. Such notice shall specify the date as to which the books shall be closed or record date fixed with respect to such offer of subscription and the right of the holder thereof to participate in such offer of subscription shall terminate if the Warrant shall not be exercised on or before the date of such closing of the books or such record date.
(h) Any adjustment pursuant to the aforesaid provisions shall be made on the basis and upon of the terms and conditions herein specified and in lieu number of shares of Common Stock which the holder thereof would have been entitled to acquire by the exercise of the Warrant Shares immediately theretofore prior to the event giving rise to such adjustment.
(i) Irrespective of any adjustments in the Warrant Price or the number or kind of shares purchasable upon exercise of the Warrants, Warrants previously or thereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Warrants initially issuable pursuant to this Warrant Agreement.
(j) The Company may retain a firm of independent public accountants (who may be any such firm regularly employed by the Company) to make any computation required under this Section, and any certificate setting forth such computation signed by such firm shall be conclusive evidence of the correctness of any computation made under this Section.
(k) If at any time, as a result of an adjustment made pursuant to paragraph (d) above, the holders of a Warrant or Warrants shall become entitled to purchase any securities other than shares of Common Stock, thereafter the number of such securities so purchasable upon exercise of each Warrant and the Warrant Price for such shares shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in paragraphs (b) and (c).
(l) No adjustment to the Purchase Price of the Warrants or to the number of shares of Common Stock purchasable upon the exercise of such Warrants will be made, however under the following circumstances:
(i) upon the grant or exercise of any of the options presently outstanding (or options which may hereafter be granted and/or exercised) under the Company's Stock Option Plan for officers, directors and/or employees, consultants and similar situated parties of the Company; or
(ii) upon the sale or exercise of the Warrants; or
(iii) upon exercise of the Underwriter's Warrant as otherwise described in the Company's Prospectus dated __________ __, 1998; or
(iv) upon exercise or sale of the Warrants issuable upon exercise of the Underwriter's Warrant, the highest amount of such shares, securities or assets as would have been issuable or payable with respect ; or
(v) upon any amendment to or change in exchange the term of any rights or warrants to subscribe for a number or purchase, or options for the purchase of Warrant Shares equal to the number Common Stock or convertible securities, including, but not limited to, any extension of Warrant Shares immediately theretofore issuable upon any expiration date of any such right, warrant or option, any change in any exercise of the Warrant, had such Fundamental Transaction not taken place, and or purchase price provided for in any such case appropriate provision shall be made with respect to right, warrant or option, any extension of any date through which any convertible securities are convertible into or exchangeable for Common Stock or any change in the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision rate at which any convertible securities are convertible into or exchangeable for adjustment of the Warrant Price) shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing on the books of the Company, shares, securities or assets as, in accordance with the foregoing provisions, the Warrantholder may be entitled to purchase, and the other obligations under this Warrant. The provisions of this paragraph (c) shall similarlyCommon Stock.
Appears in 1 contract
Warrant Price; Adjustments. Subject A. The warrant price per share at which Shares shall be purchasable upon exercise of Warrants (herein called the “Warrant Exercise Price”) to and pursuant including the Expiration Date (unless the Expiration Date is extended as provided below in this Section 9A) shall be $ per share, or, if adjusted as provided in this Section, shall be such price as so adjusted. The Warrants will not be exercisable prior to [the close of business on the date of any initial issuance thereof] [ ] and will expire at [ ] p.m., [City] time, on the Expiration Date; provided that the Company reserves the right to, and may, in its sole discretion, at any time and from time to time, at such time or times as the Company so determines, extend the Expiration Date of the Warrants for such periods of time as it chooses; further provided that in no case may the Expiration Date of the Warrants (as extended) be extended beyond five years from the Expiration Date set forth above. Whenever the Expiration Date of the Warrants is so extended, the Company shall at least 20 days prior to the then Expiration Date cause to be mailed to the Warrant Agent and the registered holders of the Warrants in accordance with the provisions of this Section 817 hereof a notice stating that the Expiration Date has been extended and setting forth the new Expiration Date.
B. The above provision is, however, subject to the following: (1) The warrant purchase price, the number of Shares purchasable upon exercise of each Warrant Price and the number of Warrants outstanding shall be determinedsubject to adjustment as follows:
(a) In case the Company shall at any time after the date of this Agreement (i) pay a dividend, and or make a distribution, on the Warrant Price and Common Stock which is payable in shares of its capital stock (whether shares of Common Stock or of capital stock of any other class), (ii) subdivide or reclassify its outstanding shares of Common Stock into a greater number of securities (including shares of Common Stock), or (iii) combine or reclassify its outstanding shares of Common Stock into a smaller number of shares (including shares of Common Stock), the number of shares purchasable upon exercise of each Warrant Shares subject immediately prior to the occurrence of such event shall be adjusted so that the holder of each Warrant shall be entitled to receive upon payment of the warrant purchase price the aggregate number of shares of the Company which, if such Warrant had been exercised immediately prior to the occurrence of such event, such holder would have owned or have been entitled to receive immediately after the occurrence of such event. An adjustment made pursuant to this subparagraph (a) shall become effective immediately after the record date in the case of a dividend and shall become effective immediately after the effective date in the case of a subdivision or combination. If, as a result of an adjustment made pursuant to this subparagraph (a), the holder of any Warrant thereafter exercised shall become entitled to receive shares of two or more classes of capital stock of the Company, the Board of Directors of the Company (whose determination shall be conclusive) shall determine the allocation between or among shares of such classes of capital stock. In the event that at any time, as a result of an adjustment made pursuant to this subparagraph (a), the holder of any Warrant thereafter exercised shall become entitled to receive any shares or other securities of the Company other than shares of Common Stock, thereafter the number of such other shares so received upon exercise of any Warrant shall be subject to adjustment from time to time, time in a manner and on terms as set forth hereinafter.
(a) On each date this Warrant is exercised pursuant nearly equivalent as practicable to the provisions with respect to the shares of Common Stock contained in this paragraph, and other provisions of this paragraph 9(B)(1) with respect to the shares of Common Stock shall apply on like terms hereof, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as to any such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”)other shares or other securities.
(b) If In case the Company shall, at any time shall fix a record date for the issuance of rights or from time warrants to time while this Warrant is outstanding, pay a dividend or make a distribution on all holders of its Common Shares Stock entitling them (for a period expiring within 45 days after such record date) to subscribe for or purchase Common Stock at a price per share less than the current market price per share of Common Stock (as defined in Common Sharessubparagraph (e) below) at such record date, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant warrant purchase price shall be adjusted determined by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant warrant purchase price in effect immediately prior to (but not including) the such record date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Shares of Common Stock outstanding on such record date plus the number of Shares outstanding immediately after giving effect to of Common Stock which the aggregate offering price of the total number of Shares so offered would purchase at such change current market price, and the denominator of which shall be the number of Shares of Common Stock outstanding on such record date plus the number of additional Shares outstanding immediately prior to such changeof Common Stock offered for subscription or purchase. Such adjustments adjustment shall be made successively whenever such a record date is fixed, and shall become effective immediately after such record date. In determining whether any event listed above rights or warrants entitle the holders to subscribe for or purchase shares of common stock at less than such current market price, and in determining the aggregate offering price of such shares, there shall occurbe taken into account any consideration received by the Company for such rights or warrants, the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. Common Stock owned by or held for the account of the Company or any majority owned subsidiary shall not be deemed outstanding for the purpose of any adjustment required under this subparagraph (b).
(c) If In case the Company shall fix a record date for making a distribution to all holders of its Common Stock of evidences of its indebtedness or assets (excluding regular quarterly or other periodic or recurring cash dividends or distributions and cash dividends or distributions paid from retained earnings or referred to in subparagraph (a) above) or rights or warrants to subscribe or warrants to purchase (excluding those referred to in subparagraph (b) above), then in each such case the warrant purchase price shall be determined by multiplying the warrant purchase price in effect immediately prior to such record date by a fraction (x) the numerator of which shall be such current market price (as defined in subparagraph (e) below) per Share of Common Stock on such record date, less the then fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive) of the portion of the assets or evidences of indebtedness so distributed or of such subscription rights or warrants applicable to one share of the Common Stock and (y) the denominator of which shall be the current market price per share of the Common Stock on such record date. Such adjustment shall be made successively whenever such a record date is fixed and shall become effective immediately after such record date. Notwithstanding the foregoing, in the event that the Company shall distribute any rights or warrants to acquire capital stock (“Rights”) pursuant to this subparagraph (c), the distribution of separate certificates representing such Rights subsequent to their initial distribution (whether or not such distribution shall have occurred prior to the date of the issuance of such Warrants) shall be deemed to be the distribution of such Rights for purposes of this subparagraph (c), provided that the Company may, in lieu of making any adjustment pursuant to this subparagraph (c) upon a distribution of separate certificates representing such Rights, make proper provision so that each holder of such Warrants who exercises such Warrants (or any portion thereof) (i) capital reorganization before the record date for such distribution of separate certificates shall be entitled to receive upon such exercise shares of Common Stock issued with Rights and (ii) after such record date and prior to the expiration, redemption or reclassification termination of such Rights shall be entitled to receive upon such exercise, in addition to the shares of Common Stock issuable upon such exercise, the same number of such Rights as would a holder of the share capital number of shares of Common Stock that such Warrants so exercised would have entitled the holder thereof to purchase in accordance with the terms and provisions of and applicable to the Rights if such Warrants were exercised immediately prior to the record date for such distribution. Common Stock owned by or held for the account of the CompanyCompany or any majority owned subsidiary shall not be deemed outstanding for the purpose of any adjustment required under this subparagraph (c).
(d) After each adjustment of the number of shares purchasable upon exercise of each Warrant pursuant to subparagraph 9(B)(1)(a), the Warrant Exercise Price shall be adjusted by multiplying such Warrant Exercise Price immediately prior to such adjustment by a fraction of which the numerator shall be the number of Shares purchasable upon exercise of each Warrant immediately prior to such adjustment, and the denominator of which shall be the number of Shares so purchasable immediately thereafter. After each adjustment of the Warrant Exercise Price pursuant to subparagraph 9(B)(1)(b) or (c), the total number of Shares or fractional part thereof purchasable upon the exercise of each Warrant shall be proportionately adjusted to such number of shares or fractional parts thereof as the aggregate Warrant Exercise Price of the number of shares or fractional part thereof purchasable immediately prior to such adjustment will buy at the adjusted Warrant Exercise Price.
(e) For the purpose of any computation under subparagraphs 9(B)(1)(b) and (c) above, the current market price per Share of Common Stock at any date shall be deemed to be the average of the daily closing prices for the 30 consecutive business days commencing 45 business days before the day in question. The closing price for each day shall be (i) if the Common Stock is listed or admitted for trading on the New York Stock Exchange, the last sale price (regular way), or the average of the closing bid and ask prices (regular way), if no sale occurred, of Common Stock, in either case as reported on the New York Stock Exchange Composite Tape or, if the Common Stock is not listed or admitted to trading on the New York Stock Exchange, on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the National Market System of the National Association of Securities Dealers, Inc. Automated Quotations System (“NASDAQ”) or, (ii) consolidationif not listed or quoted as described in (i), amalgamation the mean between the closing high bid and low asked quotations of Common Stock reported by NASDAQ, or merger any similar system for automated dissemination of quotations of securities prices then in common use, if so quoted, or (iii) if not quoted as described in clause (ii), the mean between the high bid and low asked quotations for Common Stock as reported by the National Quotation Bureau Incorporated if at least two securities dealers have inserted both bid and asked quotations for Common Stock on at least 5 of the 10 preceding days. If none of the conditions set forth above is met, the closing price of Common Stock on any day or the average of such closing prices for any period shall be the fair market value of Common Stock as determined by a member firm of the New York Stock Exchange selected by the Company.
(i) Nothing contained herein shall be construed to require an adjustment as a result of the issuance of Common Stock pursuant to, or the granting or exercise of any rights under, the Company’s [List employee and shareholder plans, if any, that might otherwise result in adjustments].
(ii) In addition, no adjustment in the Warrant Exercise Price shall be required unless and until the earlier of the following shall have occurred: (x) such adjustment would require an increase or decrease of at least 1% in the Warrant Exercise Price or (y) a period of 3 years shall have elapsed from the date of the occurrence of any event requiring any such adjustment pursuant to subparagraphs 9(B)(1)(a), (b) or (c) above. All adjustments shall be made to the nearest one hundredth of a Share and the nearest cent, and any adjustments which by reason of this subparagraph (f) are not required to be made shall be carried forward cumulatively and taken into account in any subsequent adjustment which (including such carry-forward) is required to be made under this subparagraph (f).
(g) In any case in which this subparagraph 9(B)(1) shall require that an adjustment be made retroactively immediately following a record date, the Company may elect to defer (but only until five business days following the mailing of the notice described in subparagraph 9(B)(5) below) issuing to the holder of any Warrant exercised after such record date the Shares of the Company with another company in which issuable upon such exercise over and above the Shares issuable upon such exercise only on the basis of the Warrant Exercise Price prior to adjustment.
(h) The Company may, at its option, at any time until the Expiration Date, reduce the then current Warrant Exercise Price to any amount deemed appropriate by the Board of Directors of the Company is for any period not the survivor, exceeding twenty (iii20) sale, transfer or other disposition consecutive days (as evidenced in a resolution adopted by such Board of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”Directors), shall be effectedbut only upon giving the notices required by subparagraph 9(B)(5) twenty (20) days prior to taking such action.
(i) Except as herein otherwise expressly provided, then, as a condition of such Fundamental Transaction, lawful and adequate provision no adjustment in the Warrant Exercise Price shall be made whereby each Warrantholder shall thereafter have by reason of the issuance of Shares, or securities convertible into or exchangeable for Shares, or securities carrying the right to purchase and receive upon the basis and upon the terms and conditions herein specified and in lieu any of the Warrant Shares immediately theretofore issuable upon exercise foregoing or for any other reason whatsoever.
(j) Irrespective of any of the Warrant, adjustments in the highest amount of such shares, securities Warrant Exercise Price or assets as would have been issuable or payable with respect to or in exchange for a number of Warrant Shares equal to the number of Shares, Warrant Certificates theretofore issued may continue to express the same prices and number of Shares immediately theretofore as are stated in a similar Warrant Certificate issuable upon exercise initially, or at some subsequent time, pursuant to this Agreement and such number of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision Shares specified therein shall be made with respect deemed to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing on the books of the Company, shares, securities or assets as, in accordance with the foregoing provisions, the Warrantholder may be entitled to purchase, and the other obligations under this Warrant. The provisions of this paragraph (c) shall similarlyhave been so adjusted.
Appears in 1 contract
Warrant Price; Adjustments. Subject and pursuant to the provisions of this Section 8, the The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, time as set forth hereinafter.follows:
(aA) On each If the Issuer shall issue, after the date this Warrant is exercised pursuant upon which any shares of Preferred Stock were first issued (the “Purchase Date”), any Additional Shares of Common Stock (as defined below) without consideration or for a consideration per share less than the Conversion Price for the Preferred Stock in effect immediately prior to the terms hereofissuance of such Additional Shares of Common Stock, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If the Company shall, at any time or from time to time while for this Warrant is outstanding, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant effect immediately prior to each such issuance shall (but not includingexcept as otherwise provided in this Section 4(d)(i)) the date on which be adjusted concurrently with such change shall become effective issuance to a price determined by multiplying such Warrant Price by a fraction, the numerator of which is shall be the number of shares of Common Shares Stock outstanding and deemed issued pursuant to Section 4(d)(i)(E) immediately after giving effect prior to such change issuance plus the number of shares of Common Stock that the aggregate consideration received by this Issuer for such issuance would purchase at such Conversion Price; and the denominator of which shall be the number of shares of Common Shares Stock outstanding and deemed issued pursuant to Section 4(d)(i)(E) immediately prior to such change. Such adjustments issuance plus the number of shares of such Additional Shares of Common Stock.
(B) No adjustment of the Warrant Price pursuant to this Section 4(d) shall be made successively whenever in an amount less than one cent per share, provided that any adjustments that are not required to be made by reason of this sentence shall be carried forward and shall be either taken into account in any subsequent adjustment made prior to one (1) year from the date of the event listed giving rise to the adjustment being carried forward, or shall be made at the end of one (1) year from the date of the event giving rise to the adjustment being carried forward. Except to the limited extent provided for in Sections 4(d)(i)(E)(3) and 4(d)(i)(E)(4), no adjustment of such Warrant Price pursuant to this Section 4(d)(i) shall have the effect of increasing the Warrant Price above shall occurthe Warrant Price in effect immediately prior to such adjustment.
(cC) If any (i) capital reorganization or reclassification For purposes of this Section 4(d)(i), in the case of the share capital issuance of Additional Shares of Common Stock for cash, the consideration shall be deemed to be the amount of cash paid therefor before deducting any reasonable discounts, commissions or other expenses allowed, paid or incurred by this Issuer for any underwriting or otherwise in connection with the issuance and sale thereof.
(D) For purposes of this Section 4(d)(i), in the case of the Company, (ii) consolidation, amalgamation or merger issuance of the Company with another company Additional Shares of Common Stock for a consideration in which whole or in part other than cash, the Company is not consideration other than cash shall be deemed to be the survivor, fair value thereof as determined by the Board irrespective of any accounting treatment.
(iiiE) sale, transfer or other disposition of all or substantially all In the case of the Company’s assets to another company issuance (whether before, on or (ivafter the Purchase Date) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sellStock Equivalents, tender or exchange their the following provisions shall apply for all purposes of this Section 4(d)(i):
(1) The aggregate maximum number of shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), shall be effected, then, as a condition of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions herein specified and in lieu of the Warrant Shares immediately theretofore issuable Stock deliverable upon exercise (assuming the satisfaction of the Warrantany conditions to exercisability, the highest amount of such shares, securities or assets as would have been issuable or payable with respect to or in exchange for a number of Warrant Shares equal to the number of Warrant Shares immediately theretofore issuable upon exercise of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision the passage of time, of such options to purchase or rights to subscribe for adjustment Common Stock shall be deemed to have been issued at the time such options or rights were issued and for a consideration equal to the consideration (determined in the manner provided in Sections 4(d)(i)(C) and 4(d)(i)(D)), if any, received by this Issuer upon the issuance of such options or rights plus the minimum exercise price provided in such options or rights for the Common Stock covered thereby.
(2) The aggregate maximum number of shares of Common Stock deliverable upon conversion of, or in exchange (assuming the satisfaction of any conditions to convertibility or exchangeability, including, without limitation, the passage of time, for any such convertible or exchangeable securities or upon the exercise of options to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof shall be deemed to have been issued at the time such securities were issued or such options or rights were issued and for a consideration equal to the consideration, if any, received by the Issuer for any such securities and related options or rights (excluding any cash received on account of accrued interest or accrued dividends), plus the minimum additional consideration, if any, to be received by the Issuer upon the conversion or exchange of such securities or the exercise of any related options or rights (the consideration in each case to be determined in the manner provided in Sections 4(d)(i)(C) and 4(d)(i)(D)).
(3) In the event of any change in the number of shares of Common Stock deliverable or in the consideration payable to the Issuer upon exercise of such options or rights or upon conversion of or in exchange for such convertible or exchangeable securities, including, but not limited to, a change resulting from the antidilution provisions thereof, the Warrant Price) , to the extent in any way affected by or computed using such options, rights or securities, shall thereafter be applicablerecomputed to reflect such change, as nearly equivalent as may but no further adjustment shall be practicable in relation to made for the actual issuance of Common Stock or any shares, securities or assets thereafter deliverable payment of such consideration upon the exercise hereof. The Company shall not effect of any such Fundamental Transaction unless prior to options or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, rights or the company purchasing conversion or otherwise acquiring exchange of such assets securities.
(4) Upon the expiration of any such options or other appropriate company rights, the termination of any such rights to convert or entity shall assume exchange or the obligation expiration of any options or rights related to deliver such convertible or exchangeable securities, the Warrant Price, to the Warrantholderextent in any way affected by or computed using such options, at rights or securities or options or rights related to such securities, shall be recomputed to reflect the last address issuance of only the number of shares of Common Stock (and convertible or exchangeable securities that remain in effect) actually issued upon the exercise of such options or rights, upon the conversion or exchange of such securities or upon the exercise of the Warrantholder appearing on options or rights related to such securities.
(5) The number of shares of Common Stock deemed issued and the books consideration deemed paid therefor pursuant to Sections 4(d)(i)(E)(1) and 4(d)(i)(E)(2) shall be appropriately adjusted to reflect any change, termination or expiration of the Company, shares, securities type described in either Section 4(d)(i)(E)(3) or assets as, in accordance with the foregoing provisions, the Warrantholder may be entitled to purchase, and the other obligations under this Warrant. The provisions of this paragraph (c) shall similarly4(d)(i)(E)(4).
Appears in 1 contract
Warrant Price; Adjustments. Subject and pursuant to (a) The warrant price at which Common Stock shall be purchasable upon the provisions exercise of the Warrants shall be $6.00 at any time from ________ __, 1998 until 5:00 Eastern time on _________ __, 2001 or after adjustment, as provided in this Section 8Section, shall be such price as so adjusted (the "Warrant Price").
(b) The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to timetime as follows:
(i) In case the Company shall at any time after the date hereof pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, as set forth hereinafterthen upon such dividend or distribution the Warrant Price in effect immediately prior to such dividend or distribution shall forthwith be reduced to a price determined by dividing:
(A) an amount equal to the total number of shares of Common Stock outstanding immediately prior to such dividend or distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by
(B) the total number of shares of Common Stock outstanding immediately after such issuance or sale. For the purposes of any computation to be made in accordance with the provisions of this clause:
(i) The following provisions shall be applicable: Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution.
(aii) On each date this Warrant is exercised pursuant to In case the terms hereofCompany shall at any time subdivide or combine the outstanding Common Stock, the Warrant Price per Warrant Share shall forthwith be determined as set forth proportionately decreased in Exhibit A (as the case of subdivision or increased in the case of combination to the nearest one cent. Any such dollar amount per share may be adjusted pursuant to this Section 8, adjustment shall become effective at the “Warrant Price”)time such subdivision or combination shall become effective.
(biii) If Within a reasonable time after the close of each quarterly fiscal period of the Company during which the Warrant Price has been adjusted as herein provided, the Company shall:
(A) File with the Warrant Agent a certificate signed by the President or Vice President of the Company and by the Treasurer or Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, showing in detail the facts requiring all such adjustments occurring during such period and the Warrant Price after each such adjustment; and
(B) The Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours, and the Warrant Agent may conclusively rely upon the latest certificate furnished to it hereunder. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making any such adjustment, or with respect to the nature or extent of the property or securities deliverable hereunder. In the absence of a certificate having been furnished, the Warrant Agent may conclusively rely upon the provisions of the Warrants with respect to the Common Stock deliverable upon the exercise of the Warrants and the applicable Warrant Price thereof.
(C) Notwithstanding anything contained herein to the contrary, no adjustment of the Warrant Price shall be made if the amount of such adjustment shall be less than $.05, but in such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to not less than $.05.
(c) In the event that the number of outstanding shares of Common Stock is increased by a stock dividend payable in Common Stock or by a subdivision of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to time while Subsection (b) of this Warrant is outstanding, pay a Section by reason of such dividend or make a distribution on its Common Shares in Common Sharessubdivision, subdivide its issued and outstanding Common Shares into a greater the number of shares or combine its issued and of Common Stock issuable upon the exercise of each Warrant shall be increased in proportion to such increase in outstanding Common Shares into a smaller shares. In the event that the number of shares of Common Stock outstanding is decreased by a combination of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to Subsection (b) of this Section by reason of such combination, the number of shares of Common Stock issuable upon the exercise of each Warrant shall be decreased in proportion to such decrease in the outstanding shares of Common Stock.
(d) In case of any reorganization or issue by reclassification of its issued and the outstanding Common Shares Stock (other than a change in par value, or from par value to no par value, or as a result of a subdivision or combination), or in case of any consolidation of its share capital the Company with, or merger of the Company into, another corporation (including any such reclassification in connection with other than a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but corporation and which does not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever result in any event listed above shall occur.
(c) If any (i) capital reorganization or reclassification of the share capital of the Company, (ii) consolidation, amalgamation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”Stock), shall be effectedor in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, then, as a condition the holder of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder Warrant then outstanding shall thereafter have the right to purchase the kind and amount of shares of Common Stock and/or other securities and property receivable upon such reorganization, reclassification, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock which the holder of such Warrant shall then be entitled to purchase; such adjustments shall apply with respect to all such changes occurring between the date of this Warrant Agreement and the date of exercise of such Warrant.
(e) Subject to the provisions of this Section 9, in case the Company shall, at any time prior to the exercise of the Warrants, make any distribution of its assets to holders of its Common Stock as a liquidating or a partial liquidating dividend, then the holder of Warrants who exercises his Warrants after the record date for the determination of those holders of Common Stock entitled to such distribution of assets as a liquidating or partial liquidating dividend shall be entitled to receive for the Warrant Price per Warrant, in addition to each share of Common Stock, the amount of such distribution (or, at the option of the Company, a sum equal to the value of any such assets at the time of such distribution as determined by the Board of Directors of the Company in good faith), which would have been payable to such holder had he been the holder of record of the Common Stock receivable upon exercise of his Warrant on the record date for the determination of those entitled to such distribution.
(f) In case of the dissolution, liquidation or winding-up of the Company, all rights under the Warrants shall terminate on a date fixed by the Company, such date to be no earlier than ten (10) days prior to the effectiveness of such dissolution, liquidation or winding-up and not later than five (5) days prior to such effectiveness. Notice of such termination of purchase rights shall be given to the last registered holder of the Warrants, as the same shall appear on the books of the Company maintained by the Warrant Agent, by registered mail at least thirty (30) days prior to such termination date.
(g) In case the Company shall, at any time prior to the expiration of the Warrants and prior to the exercise thereof, offer to the holders of its Common Stock any rights to subscribe for additional shares of any class of the Company, then the Company shall give written notice thereof to the last registered holder thereof not less than thirty (30) days prior to the date on which the books of the Company are closed or a record date is fixed for the determination of the stockholders entitled to such subscription rights. Such notice shall specify the date as to which the books shall be closed or record date fixed with respect to such offer of subscription and the right of the holder thereof to participate in such offer of subscription shall terminate if the Warrant shall not be exercised on or before the date of such closing of the books or such record date.
(h) Any adjustment pursuant to the aforesaid provisions shall be made on the basis and upon of the terms and conditions herein specified and in lieu number of shares of Common Stock which the holder thereof would have been entitled to acquire by the exercise of the Warrant Shares immediately theretofore prior to the event giving rise to such adjustment.
(i) Irrespective of any adjustments in the Warrant Price or the number or kind of shares purchasable upon exercise of the Warrants, Warrants previously or thereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Warrants initially issuable pursuant to this Warrant Agreement.
(j) The Company may retain a firm of independent public accountants (who may be any such firm regularly employed by the Company) to make any computation required under this Section, and any certificate setting forth such computation signed by such firm shall be conclusive evidence of the correctness of any computation made under this Section.
(k) If at any time, as a result of an adjustment made pursuant to paragraph (d) above, the holders of a Warrant or Warrants shall become entitled to purchase any securities other than shares of Common Stock, thereafter the number of such securities so purchasable upon exercise of each Warrant and the Warrant Price for such shares shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in paragraphs (b) and (c).
(l) No adjustment to the Purchase Price of the Warrants or to the number of shares of Common Stock purchasable upon the exercise of such Warrants will be made, however under the following circumstances:
(i) upon the grant or exercise of any of the options presently outstanding (or options which may hereafter be granted and/or exercised) under the Company's Stock Option Plan for officers, directors and/or employees, consultants and similar situated parties of the Company; or
(ii) upon the sale or exercise of the Warrants; or
(iii) upon exercise of the Underwriter's Warrant as otherwise described in the Company's Prospectus dated ______ __, 1998; or
(iv) upon exercise or sale of the Warrants issuable upon exercise of the Underwriter's Warrant, the highest amount of such shares, securities or assets as would have been issuable or payable with respect ; or
(v) upon any amendment to or change in exchange the term of any rights or warrants to subscribe for a number or purchase, or options for the purchase of Warrant Shares equal to the number Common Stock or convertible securities, including, but not limited to, any extension of Warrant Shares immediately theretofore issuable upon any expiration date of any such right, warrant or option, any change in any exercise of the Warrant, had such Fundamental Transaction not taken place, and or purchase price provided for in any such case appropriate provision shall be made with respect to right, warrant or option, any extension of any date through which any convertible securities are convertible into or exchangeable for Common Stock or any change in the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision rate at which any convertible securities are convertible into or exchangeable for adjustment of the Warrant Price) shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing on the books of the Company, shares, securities or assets as, in accordance with the foregoing provisions, the Warrantholder may be entitled to purchase, and the other obligations under this Warrant. The provisions of this paragraph (c) shall similarlyCommon Stock.
Appears in 1 contract
Warrant Price; Adjustments. Subject and pursuant to (i) The warrant price at which Ordinary Shares shall be purchasable upon the provisions exercise of the Warrants shall be $ per share or after adjustment, as provided in this Section 8Section, shall be such price as so adjusted (the "Warrant Price").
(ii) The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, time as set forth hereinafter.follows:
(aI) On each date this Warrant is exercised pursuant to the terms hereof, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If In case the Company shall, shall at any time or from time to time while this Warrant is outstanding, after the date hereof pay a dividend in Ordinary Shares or make a distribution on its Common Shares in Common Ordinary Shares, subdivide its issued and outstanding Common Shares into a greater number of shares then upon such dividend or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification distribution the Warrant Price in connection with a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant effect immediately prior to such dividend or distribution shall forthwith be reduced to a price determined by dividing: (but not includingA) an amount equal to the date on which such change shall become effective by a fraction, the numerator of which is shall be the total number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Ordinary Shares outstanding immediately prior to such changedividend or distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by (B) the total number of Ordinary Shares outstanding immediately after such dividend or distribution. Such adjustments For the purposes of any computation to be made in accordance with the provisions of this clause (I), the following provisions shall be made successively whenever applicable: Ordinary Shares issuable by way of dividend or other distribution on any event listed above stock of
(II) In case the Company shall occurat any time subdivide or combine the outstanding Ordinary Shares, the Warrant Price shall forthwith be proportionately decreased in the case of subdivision or increased in the case of combination to the nearest one cent. Any such adjustment shall become effective at the time such subdivision or combination shall become effective.
(cIII) If any (i) capital reorganization or reclassification Within a reasonable time after the close of each quarterly fiscal period of the share capital Company during which the Warrant Price has been adjusted as herein provided, the Company shall (A) file with the Warrant Agent a certificate signed by the President or Vice President of the Company and by the Treasurer or Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, (ii) consolidation, amalgamation or merger of showing in detail the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of facts requiring all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets such adjustments occurring during such period and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), shall be effected, then, as a condition of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions herein specified and in lieu of the Warrant Shares immediately theretofore issuable upon exercise of Price after each such adjustment; and (B) the Warrant, the highest amount of such shares, securities or assets as would Warrant Agent shall have been issuable or payable no duty with respect to or in exchange for a number of Warrant Shares equal to the number of Warrant Shares immediately theretofore issuable upon exercise of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made certificate filed with respect it except to keep the rights same on file and interests available for inspection by holders of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing on the books of the Company, shares, securities or assets as, in accordance with the foregoing provisions, the Warrantholder may be entitled to purchaseWarrants during reasonable business hours, and the other obligations under this Warrant. The provisions of this paragraph (c) shall similarlyWarrant Agent
Appears in 1 contract
Samples: Warrant Agreement (Accent Software International LTD)
Warrant Price; Adjustments. Subject and pursuant to the provisions of this Section 8, the The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, time as set forth hereinafter.follows:
(aA) On each If the Issuer shall issue, after the date of issuance of this Warrant is exercised pursuant (the “Purchase Date”), any Additional Shares of Common Stock (as defined below) without consideration or for a consideration per share less than the Warrant Price in effect immediately prior to the terms hereofissuance of such Additional Shares of Common Stock (“New Warrant Price”), the Warrant Price per for this Warrant Share in effect immediately prior to each such issuance shall be determined as set forth in Exhibit A reduced to an amount equal to such New Warrant Price.
(as such dollar amount per share may be adjusted B) No adjustment of the Warrant Price pursuant to this Section 84(d) shall be made in an amount less than one cent per share, provided that any adjustments that are not required to be made by reason of this sentence shall be carried forward and shall be either taken into account in any subsequent adjustment made prior to one (1) year from the “Warrant Price”).
date of the event giving rise to the adjustment being carried forward, or shall be made at the end of one (b1) If year from the Company shall, at any time or from time date of the event giving rise to time while this Warrant is outstanding, pay a dividend or make a distribution on its Common Shares the adjustment being carried forward. Except to the limited extent provided for in Common Shares, subdivide its issued Sections 4(d)(i)(E)(3) and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing company4(d)(i)(E)(4), then no adjustment of such Warrant Price pursuant to this Section 4(d)(i) shall have the number effect of increasing the Warrant Shares purchasable upon exercise of this Price above the Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving Price in effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever any event listed above shall occuradjustment.
(cC) If any (i) capital reorganization or reclassification For purposes of this Section 4(d)(i), in the case of the share capital issuance of Additional Shares of Common Stock for cash, the consideration shall be deemed to be the amount of cash paid therefor before deducting any reasonable discounts, commissions or other expenses allowed, paid or incurred by this Issuer for any underwriting or otherwise in connection with the issuance and sale thereof.
(D) For purposes of this Section 4(d)(i), in the case of the Company, (ii) consolidation, amalgamation or merger issuance of the Company with another company Additional Shares of Common Stock for a consideration in which whole or in part other than cash, the Company is not consideration other than cash shall be deemed to be the survivor, fair value thereof as determined by the Board irrespective of any accounting treatment.
(iiiE) sale, transfer or other disposition of all or substantially all In the case of the Company’s assets to another company issuance (whether before, on or (ivafter the Purchase Date) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), shall be effected, then, as a condition of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions herein specified and in lieu of the Warrant Shares immediately theretofore issuable upon exercise of the WarrantStock Equivalents, the highest amount of such shares, securities or assets as would have been issuable or payable with respect to or in exchange following provisions shall apply for a number of Warrant Shares equal to the number of Warrant Shares immediately theretofore issuable upon exercise of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing on the books of the Company, shares, securities or assets as, in accordance with the foregoing provisions, the Warrantholder may be entitled to purchase, and the other obligations under this Warrant. The provisions all purposes of this paragraph (c) shall similarlySection 4(d)
Appears in 1 contract
Warrant Price; Adjustments. Subject and pursuant to (a) The warrant price at which Common Stock shall be purchasable upon the provisions exercise of the Warrants shall be $_____ per share or, after adjustment as provided in this Section 8Section, shall be such price as so adjusted (the "Warrant Price").
(b) The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to timetime as follows:
(1) In case the Company shall at any time after the date hereof pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, as set forth hereinafterthen upon such dividend or distribution the Warrant Price in effect immediately prior to such dividend or distribution shall forthwith be reduced to a price determined by dividing:
(i) an amount equal to the total number of shares of Common Stock outstanding immediately prior to such dividend or distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by
(ii) the total number of shares of Common Stock outstanding immediately after such dividend or distribution. For the purposes of any computation to be made in accordance with the provisions of this Section 9(b)(1), the following provisions shall be applicable: Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution.
(a2) On each date this Warrant is exercised pursuant to In case the terms hereofCompany shall at any time subdivide or combine the outstanding Common Stock, the Warrant Price per shall forthwith be proportionately decreased in the case of subdivision or increased in the case of combination to the nearest one cent. Any such adjustment shall become effective at the time such subdivision or combination shall become effective.
(3) Within a reasonable time after the close of each quarterly fiscal period of the Company during which the Warrant Share Price has been adjusted as herein provided, the Company shall:
(i) file with the Warrant Agent a certificate signed by the Chief Executive Officer, President or Vice President of the Company and by the Chief Financial Officer, Principal Accounting Officer, Treasurer or Assistant Treasurer of the Company, showing in detail the facts requiring all such adjustments occurring during such period and the Warrant Price after each such adjustment; and
(ii) the Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours, and the Warrant Agent may conclusively rely upon the latest certificate furnished to it hereunder. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making any such adjustment, or with respect to the nature or extent of the property or securities deliverable hereunder. In the absence of a certificate's having been furnished, the Warrant Agent may conclusively rely upon the provisions of the Warrants with respect to the Common Stock deliverable upon the exercise of the Warrants and the applicable Warrant Price.
(4) Notwithstanding anything contained herein to the contrary, no adjustment of the Warrant Price shall be determined as set forth made if the amount of such adjustment shall be less than $0.02, but in Exhibit A such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to not less than $0.02.
(as such dollar amount per share may be 5) In the event that the number of outstanding shares of Common Stock is increased by a stock dividend payable in Common Stock or by a subdivision of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to this Section 89(b) by reason of such dividend or subdivision, the “number of shares of Common Stock issuable upon the exercise of each Warrant Price”)shall be increased in proportion to such increase in outstanding shares. In the event that the number of shares of Common Stock outstanding is decreased by a combination of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to this Section 9(b) by reason of such combination, the number of shares of Common Stock issuable upon the exercise of each Warrant shall be decreased in proportion to such decrease in the outstanding shares of Common Stock.
(b6) If In case of any reorganization or reclassification of the outstanding Common Stock (other than a change in par value, or from par value to no par value, or as a result of a subdivision or combination), or in case of any consolidation of the Company shallwith, at any time or from time to time while this Warrant is outstandingmerger of the Company into, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital another corporation (including any such reclassification in connection with other than a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but corporation and which does not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever result in any event listed above shall occur.
(c) If any (i) capital reorganization or reclassification of the share capital of the Company, (ii) consolidation, amalgamation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”Stock), shall be effectedor in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, then, as a condition the holder of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder Warrant then outstanding shall thereafter have the right to purchase the kind and receive amount of shares of Common Stock and other securities and property receivable upon the basis and upon the terms and conditions herein specified and in lieu such reorganization, reclassification, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock which the holder of such Warrant Shares immediately theretofore issuable shall then be entitled to purchase; such adjustments shall apply with respect to all such changes occurring between the date of this Warrant Agreement and the date of exercise of such Warrant.
(7) Subject to the provisions of this Section 9, in case the Company shall, at any time prior to the exercise of the Warrants, make any distribution of its assets to holders of its Common Stock as a liquidating or a partial liquidating dividend, then the holder of Warrants who exercises its Warrants after the record date for the determination of those holders of Common Stock entitled to such distribution of assets as a liquidating or partial liquidating dividend shall be entitled to receive for the Warrant Price per Warrant, in addition to each share of Common Stock, the amount of such distribution (or, at the option of the Company, a sum equal to the value of any such assets at the time of such distribution as determined by the Board of Directors of the Company in good faith) which would have been payable to such holder had such holder been the holder of record of the Common Stock receivable upon exercise of its Warrant on the Warrantrecord date for the determination of those entitled to such distribution.
(8) In case of the dissolution, liquidation or winding up of the highest amount Company, all rights under the Warrants shall terminate on a date fixed by the Company, such date to be no earlier than ten (10) days prior to the effectiveness of such sharesdissolution, securities liquidation or assets as would have been issuable or payable with respect winding up and not later than five (5) days prior to or in exchange for a number such effectiveness. Notice of Warrant Shares equal such termination of purchase rights shall be given to the number of Warrant Shares immediately theretofore issuable upon exercise last registered holder of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) shall thereafter be applicableWarrants, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company same shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing appear on the books of the Company maintained by the Warrant Agent, by registered mail at least thirty (30) days prior to such termination date.
(9) In case the Company shall, at any time prior to the expiration of the Warrants and prior to the exercise thereof, offer to the holders of its Common Stock any rights to subscribe for additional shares of any class of the Company, shares, securities then the Company shall give written notice thereof to the registered holders of the Warrants not less than thirty (30) days prior to the date on which the books of the Company are closed or assets as, in accordance with a record date is fixed for the foregoing provisions, determination of the Warrantholder may be stockholders entitled to purchase, such subscription rights. Such notice shall specify the date as to which the books shall be closed or the record date fixed with respect to such offer of subscription and the other obligations under this Warrant. The right of the holders of the Warrants to participate in such offer of subscription shall terminate if the Warrant shall not be exercised on or before the date of such closing of the books or such record date.
(10) Any adjustment pursuant to the aforesaid provisions of this paragraph Section 9 shall be made on the basis of the number of shares of Common Stock that the holder thereof would have been entitled to acquire upon the exercise of the Warrant immediately prior to the event giving rise to such adjustment.
(c11) Irrespective of any adjustments in the Warrant Price or the number or kind of shares purchasable upon exercise of the Warrants, Warrants previously or thereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Warrants initially issuable pursuant to this Warrant Agreement.
(12) If at any time, as a result of an adjustment made pursuant to Section 9(b)(6) above, the holder of a Warrant or Warrants shall similarlybecome entitled to purchase any securities other than shares of Common Stock, thereafter the number of such securities so purchasable upon exercise of each Warrant and the Warrant Price for such securities shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in Sections 9(b)(2) through (5).
Appears in 1 contract
Samples: Public Warrant Agreement (Flight Safety Technologies Inc)
Warrant Price; Adjustments. Subject and pursuant to (a) The warrant price at which Common Stock shall be purchasable upon the provisions exercise of the Warrants shall be $2.75 per share or after adjustment, as provided in this Section 8Section, shall be such price as so adjusted (the "Warrant Price").
(b) The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to timetime as follows:
(i) In case the Company shall at any time after the date hereof pay a dividend in shares of Common Stock or make a distribution in shares of Common Stock, as set forth hereinafterthen upon such dividend or distribution the Warrant Price in effect immediately prior to such dividend or distribution shall forthwith be reduced to a price determined by dividing:
(A) an amount equal to the total number of shares of Common Stock outstanding immediately prior to such dividend or distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by
(B) the total number of shares of Common Stock outstanding immediately after such issuance or sale. For the purposes of any computation to be made in accordance with the provisions of this Section 9(b)(i), the following provisions shall be applicable: Common Stock issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution.
(aii) On each date this Warrant is exercised pursuant to In case the terms hereofCompany shall at any time subdivide or combine the outstanding Common Stock, the Warrant Price per shall forthwith be proportionately decreased in the case of subdivision or increased in the case of combination to the nearest one cent. Any such adjustment shall become effective at the time such subdivision or combination shall become effective.
(iii) Within a reasonable time after the close of each quarterly fiscal period of the Company during which the Warrant Share Price has been adjusted as herein provided, the Company shall:
(A) file with the Warrant Agent a certificate signed by the Chief Executive Officer, President or Vice President of the Company and by the Chief Financial Officer, the Treasurer or Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, showing in detail the facts requiring all such adjustments occurring during such period and the Warrant Price after each such adjustment; and
(B) the Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours, and the Warrant Agent may conclusively rely upon the latest certificate furnished to it hereunder. The Warrant Agent shall not at any time be under any duty or responsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making any such adjustment, or with respect to the nature or extent of the property or securities deliverable hereunder. In the absence of a certificate's having been furnished, the Warrant Agent may conclusively rely upon the provisions of the Warrants with respect to the Common Stock deliverable upon the exercise of the Warrants and the applicable Warrant Price thereof.
(iv) Notwithstanding anything contained herein to the contrary, no adjustment of the Warrant Price shall be determined as set forth made if the amount of such adjustment shall be less than $0.05, but in Exhibit A such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to not less than $0.05.
(as such dollar amount per share may be v) In the event that the number of outstanding shares of Common Stock is increased by a stock dividend payable in Common Stock or by a subdivision of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to this Section 89(b) by reason of such dividend or subdivision, the “number of shares of Common Stock issuable upon the exercise of each Warrant Price”)shall be increased in proportion to such increase in outstanding shares. In the event that the number of shares of Common Stock outstanding is decreased by a combination of the outstanding Common Stock, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to this Section 9(b) by reason of such combination, the number of shares of Common Stock issuable upon the exercise of each Warrant shall be decreased in proportion to such decrease in the outstanding shares of Common Stock.
(bvi) If In case of any reorganization or reclassification of the outstanding Common Stock (other than a change in par value, or from par value to no par value, or as a result of a subdivision or combination), or in case of any consolidation of the Company shallwith, at any time or from time to time while this Warrant is outstandingmerger of the Company into, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital another corporation (including any such reclassification in connection with other than a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but corporation and which does not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever result in any event listed above shall occur.
(c) If any (i) capital reorganization or reclassification of the share capital of the Company, (ii) consolidation, amalgamation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”Stock), shall be effectedor in case of any sale or conveyance to another corporation of the property of the Company as an entirety or substantially as an entirety, then, as a condition the holder of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder Warrant then outstanding shall thereafter have the right to purchase the kind and receive amount of shares of Common Stock and other securities and property receivable upon the basis and upon the terms and conditions herein specified and in lieu such reorganization, reclassification, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock which the holder of such Warrant Shares immediately theretofore issuable shall then be entitled to purchase; such adjustments shall apply with respect to all such changes occurring between the date of this Warrant Agreement and the date of exercise of such Warrant.
(vii) Subject to the provisions of this Section 9, in case the Company shall, at any time prior to the exercise of the Warrants, make any distribution of its assets to holders of its Common Stock as a liquidating or a partial liquidating dividend, then the holder of Warrants who exercises its Warrants after the record date for the determination of those holders of Common Stock entitled to such distribution of assets as a liquidating or partial liquidating dividend shall be entitled to receive for the Warrant Price per Warrant, in addition to each share of Common Stock, the amount of such distribution (or, at the option of the Company, a sum equal to the value of any such assets at the time of such distribution as determined by the Board of Directors of the Company in good faith), which would have been payable to such holder had he been the holder of record of the Common Stock receivable upon exercise of its Warrant on the Warrantrecord date for the determination of those entitled to such distribution.
(viii) In case of the dissolution, liquidation or winding up of the highest amount Company, all rights under the Warrants shall terminate on a date fixed by the Company, such date to be no earlier than ten (10) days prior to the effectiveness of such sharesdissolution, securities liquidation or assets as would have been issuable or payable with respect winding up and not later than five (5) days prior to or in exchange for a number such effectiveness. Notice of Warrant Shares equal such termination of purchase rights shall be given to the number of Warrant Shares immediately theretofore issuable upon exercise last registered holder of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) shall thereafter be applicableWarrants, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company same shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing appear on the books of the Company maintained by the Warrant Agent, by registered mail at least thirty (30) days prior to such termination date.
(ix) In case the Company shall, at any time prior to the expiration of the Warrants and prior to the exercise thereof, offer to the holders of its Common Stock any rights to subscribe for additional shares of any class of the Company, shares, securities then the Company shall give written notice thereof to the last registered holder thereof not less than thirty (30) days prior to the date on which the books of the Company are closed or assets as, in accordance with a record date is fixed for the foregoing provisions, determination of the Warrantholder may be stockholders entitled to purchase, such subscription rights. Such notice shall specify the date on which the books shall be closed or record date fixed with respect to such offer of subscription and the other obligations under this Warrant. The right of the holder thereof to participate in such offer of subscription shall terminate if the Warrant shall not be exercised on or before the date of such closing of the books or such record date.
(x) Any adjustment pursuant to the aforesaid provisions of this paragraph Section 9 shall be made on the basis of the number of shares of Common Stock which the holder thereof would have been entitled to acquire by the exercise of the Warrant immediately prior to the event giving rise to such adjustment.
(cxi) Irrespective of any adjustments in the Warrant Price or the number or kind of shares purchasable upon exercise of the Warrants, Warrants previously or thereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Warrants initially issuable pursuant to this Warrant Agreement.
(xii) The Company may retain a firm of independent public accountants (who may be any such firm regularly employed by the Company) to make any computation required under this Section 9, and any certificate setting forth such computation signed by such firm shall similarlybe conclusive evidence of the correctness of any computation made under this Section 9.
(xiii) If at any time, as a result of an adjustment made pursuant to Section 9(b)(vi) above, the holders of a Warrant or Warrants shall become entitled to purchase any securities other than shares of Common Stock, thereafter the number of such securities so purchasable upon exercise of each Warrant and the Warrant Price for such shares shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained in Sections 9(b)(ii) through (v).
Appears in 1 contract
Warrant Price; Adjustments. Subject and pursuant to (i) The warrant price at which Ordinary Shares shall be purchasable upon the provisions exercise of the Warrants shall be $ per share, or after adjustment as provided in this Section 8Section, shall be such price as so adjusted (the "Warrant Price").
(ii) The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to timetime as follows:
(I) In case the Company shall at any time after the date hereof pay a dividend in Ordinary Shares or make a distribution in Ordinary Shares, as set forth hereinafterthen upon such dividend or distribution the Warrant Price in effect immediately prior to such dividend or distribution shall forthwith be reduced to a price determined by dividing:
(A) an amount equal to the total number of Ordinary Shares outstanding immediately prior to such dividend or distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by
(B) the total number of Ordinary Shares outstanding immediately after such dividend or distribution. For the purposes of any computation to be made in accordance with the provisions of this clause (I), the following provisions shall be applicable: Ordinary Shares issuable by way of dividend or other distribution on any stock of the Company shall be deemed to have been issued immediately after the opening of business on the date following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution.
(aII) On each date this Warrant is exercised pursuant to In case the terms hereofCompany shall at any time subdivide or combine the outstanding Ordinary Shares, the Warrant Price per Warrant Share shall forthwith be determined as set forth proportionately decreased in Exhibit A (as the case of subdivision or increased in the case of combination to the nearest one cent. Any such dollar amount per share may be adjusted pursuant to this Section 8, adjustment shall become effective at the “Warrant Price”)time such subdivision or combination shall become effective.
(bIII) If Within a reasonable time after the close of each quarterly fiscal period of the Company shallduring which the Warrant Price has been adjusted as herein provided, the Company shall file with the holders of the Warrants a certificate signed by the President or Vice President of the Company and by the Treasurer or Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, showing in detail the facts requiring all such adjustments occurring during such period and the Warrant Price after each such adjustment; and
(A) The holders of the Warrants shall not at any time be under any duty or responsibility to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making any such adjustment, or with respect to the nature or extent of the property or securities deliverable hereunder. In the absence of a certificate having been furnished, the holders of the Warrants may conclusively rely upon the provisions of the Warrants with respect to the Ordinary Shares deliverable upon the exercise of the Warrants and the applicable Warrant Price thereof.
(B) Notwithstanding anything contained herein to the contrary, no adjustment of the Warrant Price shall be made if the amount of such adjustment shall be less than $.05, but in such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time and together with the next subsequent adjustment which, together with any adjustment so carried forward, shall amount to not less than $.05.
(iii) In the event that the number of outstanding Ordinary Shares is increased by a stock dividend payable in Ordinary Shares or by a subdivision of the outstanding Ordinary Shares, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to Subsection (ii) of this Section by reason of such dividend or subdivision, the number of Ordinary Shares issuable upon the exercise of each Warrant shall be increased in proportion to such increase in outstanding shares. In the event that the number of Ordinary Shares outstanding is decreased by a combination of the outstanding Ordinary Shares, then, from and after the time at which the adjusted Warrant Price becomes effective pursuant to Subsection (ii) of this Section by reason of such combination, the number of Ordinary Shares issuable upon the exercise of each Warrant shall be decreased in proportion to such decrease in the outstanding Ordinary Shares.
(iv) In case of any reorganization or reclassification of the outstanding Ordinary Shares (other than a change in nominal value, or from time nominal value to time while this Warrant is outstandingno nominal value, pay or as a dividend result of a subdivision or make a distribution on its Common Shares combination), or in Common Sharescase of any consolidation of the Company with, subdivide its issued and outstanding Common Shares into a greater number or merger of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital the Company into, another corporation (including any such reclassification in connection with other than a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but corporation and which does not including) the date on which such change shall become effective by a fraction, the numerator of which is shall be the number of Common Shares outstanding immediately after giving effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments shall be made successively whenever result in any event listed above shall occur.
(c) If any (i) capital reorganization or reclassification of the share capital outstanding Ordinary Shares), or in case of any sale or conveyance to another corporation of the Company, (ii) consolidation, amalgamation or merger property of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all as an entirety or substantially all as an entirety, the holder of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the each Warrant then outstanding Common Shares (each a “Fundamental Transaction”), shall be effected, then, as a condition of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder shall thereafter have the right to purchase the kind and receive amount of Ordinary Shares and other securities and property receivable upon the basis and upon the terms and conditions herein specified and in lieu such reorganization, reclassification, consolidation, merger, sale or conveyance by a holder of the Warrant number of Ordinary Shares immediately theretofore issuable upon exercise of which the Warrant, the highest amount holder of such shares, securities or assets as would have been issuable or payable Warrant shall then be entitled to purchase; such adjustments shall apply with respect to all such changes occurring between the date of this Warrant and the date of exercise of such Warrant.
(v) In case the Company shall at any time after the date hereof pay a dividend in Ordinary Shares or make a distribution in exchange for Ordinary Shares, then upon such dividend or distribution, the Warrant Price in effect immediately prior to such dividend or distribution shall be reduced to a number of Warrant Shares price determined by dividing an amount equal to the total number of Ordinary Shares outstanding immediately prior to such dividend or distribution multiplied by the Warrant Price in effect immediately prior to such dividend or distribution, by the total number of Ordinary Shares outstanding immediately theretofore after such issuance or sale. For purposes of any computation to be made in accordance with the provisions of this Section (v), the Ordinary Shares issuable upon exercise by way of dividend or distribution shall be deemed to have been issued immediately after the opening of business on the date following the date fixed for determination of shareholders entitled to receive such dividend or distribution.
(vi) In case of the Warrantdissolution, had liquidation or winding up of the Company, all rights under the Warrants shall terminate on a date fixed by the Company, such Fundamental Transaction date to be no earlier than ten (10) days prior to the effectiveness of such dissolution, liquidation or winding up and not taken place, and in any later than five (5) days prior to such case appropriate provision effectiveness. Notice of such termination of purchase rights shall be made with respect given to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment last registered holder of the Warrant Price) shall thereafter be applicableWarrants, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company same shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing appear on the books of the Company, sharesby registered mail at least fifteen (15) days prior to such termination date.
(vii) In case the Company shall, securities at any time prior to the expiration of the Warrants and prior to the exercise thereof, offer to the holders of its Ordinary Shares any rights to subscribe for additional shares of any class of the Company, then the Company shall give written notice thereof to the last registered holder thereof not less than thirty (30) days prior to the date on which the books of the Company are closed or assets as, in accordance with a record date is fixed for the foregoing provisions, determination of the Warrantholder may be shareholders entitled to purchasesuch subscription rights. Such notice shall specify the date as to which the books shall be closed or record date fixed with respect to such offer of subscription, and the other obligations under this Warrant. The right of the holder thereof to participate in such offer of subscription shall terminate if the Warrant shall not be exercised on or before the date of such closing of the books or such record date.
(viii) Any adjustment pursuant to the aforesaid provisions shall be made on the basis of this paragraph (c) shall similarlythe number of Ordinary Shares which the holder thereof would have been entitled to acquire by the exercise of the Warrant immediately prior to the event giving rise to such adjustment.
Appears in 1 contract
Samples: Warrant Agreement (Accent Software International LTD)
Warrant Price; Adjustments. Subject A. The price at which Common Stock shall be purchasable upon exercise of Warrants at any time after the Common Stock and pursuant to Warrants become separately tradable until __________, 2002 (hereinafter called the provisions "Warrant Price") shall be $6.50 per share of Common Stock or, if adjusted as provided in this Section 8Section, the shall be such price as so adjusted.
B. The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, time as set forth hereinafter.follows:
(a1) On each date this Warrant is exercised pursuant to the terms hereofExcept as hereinafter provided, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If case the Company shall, shall at any time or from time to time while after the date hereof issue any additional shares of Common Stock for a consideration per share less than the Warrant Price in effect immediately prior to the issuance of such additional shares, or without consideration, then, upon each such issuance, the Warrant Price in effect immediately prior to the issuance of such additional shares shall forthwith be reduced to a price (calculated to the nearest full cent) determined by dividing:
(a) An amount equal to (i) the total number of shares of Common Stock outstanding immediately prior to such issuance multiplied by the Warrant Price in effect immediately prior to such issuance, plus (ii) the consideration, if any, received by the Company upon such issuance, by
(b) The total number of shares of Common Stock outstanding immediately after the issuance of such additional shares.
(2) The Company shall not be required to make any such adjustment of the Warrant Price in accordance with the foregoing if the amount of such adjustment shall be less than $.25 (adjustment will be made when cumulative adjustment equals or exceeds $0.25) but in such case the Company shall maintain a cumulative record of the Warrant Price as it would have been in the absence of this provision (the "Constructive Warrant Price"), and for the purpose of computing a new Warrant Price after the next subsequent issuance of additional shares (but not for the purpose of determining whether an adjustment thereof is outstandingrequired under the terms of this paragraph) the constructive Warrant Price shall be deemed to be the Warrant Price in effect immediately prior to such issuance.
(3) For the purpose of this ss.8 the following provisions shall also be applicable:
(a) In the case of the issuance of additional shares of Common Stock for cash, pay the consideration received by the Company therefor shall be deemed to be the net cash proceeds received by the Company for such shares before deducting any commissions or other expenses paid or incurred by the Company for any underwriting of, or otherwise in connection with, the issuance of such shares.
(b) In case of the issuance (otherwise than upon conversion or exchange of shares of Common Stock) of additional shares of Common Stock for a consideration other than cash or a consideration a part of which shall be other than cash, the amount of the consideration other than cash received by the Company for such shares shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company, as of the date of the adoption of the resolution of said Board, providing for the issuance of such shares for consideration other than cash or for consideration a part of which shall be other than cash, such fair value to include goodwill and other intangibles to the extent determined in good faith by the Board.
(c) In case of the issuance by the Company after the date hereof of any security (other than the Warrants) that is convertible into shares of Common Stock or of any warrants, rights or options to purchase shares of Common Stock (except the options and warrants referred to in subsection H of this ss.8), (i) the Company shall be deemed (as provided in subparagraph (e) below) to have issued the maximum number of shares of Common Stock deliverable upon the exercise of such conversion privileges or warrants, rights or options, and (ii) the consideration therefor shall be deemed to be the consideration received by the Company for such convertible securities or for such warrants, rights or options, as the case may be, before deducting therefrom any expenses or commissions incurred or paid by the Company for any underwriting of, or otherwise in connection with, the issuance of such convertible security or warrants, rights or options, plus (A) the minimum consideration or adjustment payment to be received by the Company in connection with such conversion, or (B) the minimum price at which shares of Common Stock are to be delivered upon exercise of such warrants, rights or options or, if no minimum price is specified and such shares are to be delivered at an option price related to the market value of the subject shares, an option price bearing the same relation to the market value of the subject shares at the time such warrants, rights or options were granted; provided that as to such options such further adjustment as shall be necessary on the basis of the actual option price at the time of exercise shall be made at such time if the actual option price is less than the aforesaid assumed option price. No further adjustment of the Warrant Price shall be made as a result of the actual issuance of the shares of Common Stock referred to in this subparagraph (c). On the expiration of such warrants, rights or options, or the termination of such right to convert, the Warrant Price shall be readjusted to such Warrant Price as would have pertained had the adjustments made upon the issuance of such warrants, rights, options or convertible securities been made upon the basis of the delivery of only the number of shares of Common Stock actually delivered upon the exercise of such warrants, rights or options or upon the conversion of such securities.
(d) For the purposes hereof, any additional shares of Common Stock issued as a stock dividend shall be deemed to have been issued for no consideration.
(e) The number of shares of Common Stock at any time outstanding shall include the aggregate number of shares deliverable in respect of the convertible securities, rights and options referred to in subparagraph (c) of this paragraph; provided that with respect to shares referred to in clause (i) of subparagraph (c), to the extent that such warrants, options, rights or make a distribution on its Common Shares in Common Sharesconversion privileges are not exercised, such shares shall be deemed to be outstanding only until the expiration dates of the warrants, rights, options or conversion privileges or the prior cancellation thereof.
C. In case the Company shall at any time subdivide its issued and outstanding shares of Common Shares Stock into a greater number of shares, the Warrant Price in effect immediately prior to such subdivision shall be proportionately reduced and, in case the outstanding shares or combine its issued and outstanding of the Common Shares Stock of the Company shall be combined into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately prior to (but not including) the date on which such change shall become effective by a fractionshares, the numerator of which is shall be the number of Common Shares outstanding immediately after giving Warrant Price in effect to such change and the denominator of which shall be the number of Common Shares outstanding immediately prior to such change. Such adjustments combination shall be made successively whenever any event listed above shall occurproportionately increased.
(c) If any (i) capital reorganization or reclassification of the share capital of the Company, (ii) consolidation, amalgamation or merger of the Company with another company in which the Company is not the survivor, (iii) sale, transfer or other disposition of all or substantially all of the Company’s assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), shall be effected, then, as a condition of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions herein specified and in lieu of the Warrant Shares immediately theretofore issuable upon exercise of the Warrant, the highest amount of such shares, securities or assets as would have been issuable or payable with respect to or in exchange for a number of Warrant Shares equal to the number of Warrant Shares immediately theretofore issuable upon exercise of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision for adjustment of the Warrant Price) shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any shares, securities or assets thereafter deliverable upon the exercise hereof. The Company shall not effect any such Fundamental Transaction unless prior to or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, or the company purchasing or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address of the Warrantholder appearing on the books of the Company, shares, securities or assets as, in accordance with the foregoing provisions, the Warrantholder may be entitled to purchase, and the other obligations under this Warrant. The provisions of this paragraph (c) shall similarly
Appears in 1 contract
Warrant Price; Adjustments. Subject and pursuant to the provisions of this Section 8, the The Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, time as set forth hereinafter.follows:
(aA) On each date this If the Issuer shall issue, after July 2, 2009 (the “Purchase Date”), any Additional Shares of Common Stock (as defined below) without consideration or for a consideration per share less than the Warrant is exercised pursuant Price in effect immediately prior to the terms hereofissuance of such Additional Shares of Common Stock, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If the Company shall, at any time or from time to time while for this Warrant is outstanding, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant effect immediately prior to each such issuance shall (but not includingexcept as otherwise provided in this Section 4(d)(i)) the date on which be adjusted concurrently with such change shall become effective issuance to a price determined by multiplying such Warrant Price by a fraction, the numerator of which is shall be the number of shares of Common Shares Stock outstanding and deemed issued pursuant to Section 4(d)(i)(E) immediately after giving effect prior to such change issuance plus the number of shares of Common Stock that the aggregate consideration received by this Issuer for such issuance would purchase at such Warrant Price; and the denominator of which shall be the number of shares of Common Shares Stock outstanding and deemed issued pursuant to Section 4(d)(i)(E) immediately prior to such change. Such adjustments issuance plus the number of shares of such Additional Shares of Common Stock.
(B) No adjustment of the Warrant Price pursuant to this Section 4(d) shall be made successively whenever in an amount less than one cent per share, provided that any adjustments that are not required to be made by reason of this sentence shall be carried forward and shall be either taken into account in any subsequent adjustment made prior to one (1) year from the date of the event listed giving rise to the adjustment being carried forward, or shall be made at the end of one (1) year from the date of the event giving rise to the adjustment being carried forward. Except to the limited extent provided for in Sections 4(d)(i)(E)(3) and 4(d)(i)(E)(4), no adjustment of such Warrant Price pursuant to this Section 4(d)(i) shall have the effect of increasing the Warrant Price above shall occurthe Warrant Price in effect immediately prior to such adjustment.
(cC) If any (i) capital reorganization or reclassification For purposes of this Section 4(d)(i), in the case of the share capital issuance of Additional Shares of Common Stock for cash, the consideration shall be deemed to be the amount of cash paid therefor before deducting any reasonable discounts, commissions or other expenses allowed, paid or incurred by this Issuer for any underwriting or otherwise in connection with the issuance and sale thereof.
(D) For purposes of this Section 4(d)(i), in the case of the Company, (ii) consolidation, amalgamation or merger issuance of the Company with another company Additional Shares of Common Stock for a consideration in which whole or in part other than cash, the Company is not consideration other than cash shall be deemed to be the survivor, fair value thereof as determined by the Board irrespective of any accounting treatment.
(iiiE) sale, transfer or other disposition of all or substantially all In the case of the Company’s assets to another company issuance (whether before, on or (ivafter the Purchase Date) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sellStock Equivalents, tender or exchange their the following provisions shall apply for all purposes of this Section 4(d)(i):
(1) The aggregate maximum number of shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), shall be effected, then, as a condition of such Fundamental Transaction, lawful and adequate provision shall be made whereby each Warrantholder shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions herein specified and in lieu of the Warrant Shares immediately theretofore issuable Stock deliverable upon exercise (assuming the satisfaction of the Warrantany conditions to exercisability, the highest amount of such shares, securities or assets as would have been issuable or payable with respect to or in exchange for a number of Warrant Shares equal to the number of Warrant Shares immediately theretofore issuable upon exercise of the Warrant, had such Fundamental Transaction not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of each Warrantholder to the end that the provisions hereof (including, without limitation, provision the passage of time, of such options to purchase or rights to subscribe for adjustment Common Stock shall be deemed to have been issued at the time such options or rights were issued and for a consideration equal to the consideration (determined in the manner provided in Sections 4(d)(i)(C) and 4(d)(i)(D)), if any, received by this Issuer upon the issuance of such options or rights plus the minimum exercise price provided in such options or rights for the Common Stock covered thereby.
(2) The aggregate maximum number of shares of Common Stock deliverable upon conversion of, or in exchange (assuming the satisfaction of any conditions to convertibility or exchangeability, including, without limitation, the passage of time, for any such convertible or exchangeable securities or upon the exercise of options to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof shall be deemed to have been issued at the time such securities were issued or such options or rights were issued and for a consideration equal to the consideration, if any, received by the Issuer for any such securities and related options or rights (excluding any cash received on account of accrued interest or accrued dividends), plus the minimum additional consideration, if any, to be received by the Issuer upon the conversion or exchange of such securities or the exercise of any related options or rights (the consideration in each case to be determined in the manner provided in Sections 4(d)(i)(C) and 4(d)(i)(D)).
(3) In the event of any change in the number of shares of Common Stock deliverable or in the consideration payable to the Issuer upon exercise of such options or rights or upon conversion of or in exchange for such convertible or exchangeable securities, including, but not limited to, a change resulting from the antidilution provisions thereof, the Warrant Price) , to the extent in any way affected by or computed using such options, rights or securities, shall thereafter be applicablerecomputed to reflect such change, as nearly equivalent as may but no further adjustment shall be practicable in relation to made for the actual issuance of Common Stock or any shares, securities or assets thereafter deliverable payment of such consideration upon the exercise hereof. The Company shall not effect of any such Fundamental Transaction unless prior to options or simultaneously with the consummation thereof the successor company (if other than the Company) resulting from such consolidation, amalgamation or merger, rights or the company purchasing conversion or otherwise acquiring exchange of such assets securities.
(4) Upon the expiration of any such options or other appropriate company rights, the termination of any such rights to convert or entity shall assume exchange or the obligation expiration of any options or rights related to deliver such convertible or exchangeable securities, the Warrant Price, to the Warrantholderextent in any way affected by or computed using such options, at rights or securities or options or rights related to such securities, shall be recomputed to reflect the last address issuance of only the number of shares of Common Stock (and convertible or exchangeable securities that remain in effect) actually issued upon the exercise of such options or rights, upon the conversion or exchange of such securities or upon the exercise of the Warrantholder appearing on options or rights related to such securities.
(5) The number of shares of Common Stock deemed issued and the books consideration deemed paid therefor pursuant to Sections 4(d)(i)(E)(1) and 4(d)(i)(E)(2) shall be appropriately adjusted to reflect any change, termination or expiration of the Company, shares, securities type described in either Section 4(d)(i)(E)(3) or assets as, in accordance with the foregoing provisions, the Warrantholder may be entitled to purchase, and the other obligations under this Warrant. The provisions of this paragraph (c) shall similarly4(d)(i)(E)(4).
Appears in 1 contract
Warrant Price; Adjustments. Subject A. The price at which Common Stock shall be purchasable upon exercise of Warrants at any time after the Common Stock and Warrants become separately tradable until ____________, 2003 (hereinafter called the "Warrant Price") shall be $_____ per share of Common Stock or, if adjusted as provided in this Section, shall be such price as so adjusted.
B. The Warrant Price shall be subject to adjustment from time to time as follows:
(1) Except as hereinafter provided, in case the Company shall at any time or from time to time after the date hereof issue any additional shares of Common Stock for a consideration per share less than the Warrant Price in effect immediately prior to the issuance of such additional shares, or without consideration, then, upon each such issuance, the Warrant Price in effect immediately prior to the issuance of such additional shares shall forthwith be reduced to a price (calculated to the nearest full cent) determined by dividing:
(a) An amount equal to (i) the total number of shares of Common Stock outstanding immediately prior to such issuance multiplied by the Warrant Price in effect immediately prior to such issuance, plus (ii) the consideration. if any. received by the Company upon such issuance, by
(b) The total number of shares of Common Stock outstanding immediately after the issuance of such additional shares.
(2) The Company shall not be required to make any such adjustment of the Warrant Price in accordance with the foregoing if the amount of such adjustment shall be less than $0.05 (adjustment will be made when cumulative adjustment equals or exceeds $0.05) but in such case the Company shall maintain a cumulative record of the Warrant Price as it would have been in the absence of this provision (the "Constructive Warrant Price"), and for the purpose of computing a new Warrant Price after the next subsequent issuance of additional shares (but not for the purpose of determining whether an adjustment thereof is required under the terms of this paragraph) the constructive Warrant Price shall be deemed to be the Warrant Price in effect immediately prior to such issuance.
(3) For the purpose of this Section 8 the following provisions shall also be applicable:
(a) In the case of the issuance of additional shares of Common Stock for cash, the consideration received by the Company therefor shall be deemed to be the net cash proceeds received by the Company for such shares before deducting any commissions or other expenses paid or incurred by the Company for any underwriting of, or otherwise in connection with, the issuance of such shares.
(b) In case of the issuance (otherwise than upon conversion or exchange of shares of Common stock) of additional shares of Common Stock for a consideration other than cash or a consideration a part of which shall be other than cash, the amount of the consideration other than cash received by the Company for such shares shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company, as of the date of the adoption of the resolution of said Board, providing for the issuance of such shares for consideration other than cash or for consideration a part of which shall be other than cash, such fair value to include goodwill and other intangibles to the extent determined in good faith by the Board.
(c) In case of the issuance by the Company after the date hereof of any security (other than the Warrants) that is convertible into shares of Common Stock or of any warrants, rights or options to purchase shares of Common stock (except the options and warrants referred to in subsection H of this Section 8), (i) the Company shall be deemed (as provided in subparagraph (e) below) to have issued the maximum number of shares of Common Stock deliverable upon the exercise of such conversion privileges or warrants, rights or options, and (ii) the consideration therefor shall be deemed to be the consideration received by the Company for such convertible securities or for such warrants, rights or options, as the case may be, before deducting therefrom any expenses or commissions incurred or paid by the Company for any underwriting of, or otherwise in connection with, the issuance of such convertible security or warrants, rights or options, plus (A) the minimum consideration or adjustment payment to be received by the Company in connection with such conversion, or (B) the minimum price at which shares of Common Stock are to be delivered upon exercise of such warrants, rights or options or, if no minimum price is specified and such shares are to be delivered at an option price related to the market value of the subject shares, an option price bearing the same relation to the market value of the subject shares at the time such warrants, rights or options were granted; provided that as to such options such further adjustment as shall be necessary on the basis of the actual option price at the time of exercise shall be made at such time if the actual option price is less than the aforesaid assumed option price. No further adjustment of the Warrant Price shall be made as a result of the actual issuance of the shares of Common Stock referred to in this subparagraph (c). on the expiration of such warrants, rights or options, or the termination of such right to convert, the Warrant Price shall be readjusted to such Warrant Price as would have pertained had the adjustments made upon the issuance of such warrants, rights, options or convertible securities been made upon the basis of the delivery of only the number of shares of Common Stock actually delivered upon the exercise of such warrants, rights or options or upon the conversion of such securities.
(d) For the purposes hereof, any additional shares of Common Stock issued as a stock dividend shall be deemed to have been issued for no consideration.
(e) The number of shares of Common Stock at any time outstanding shall include the aggregate number of shares deliverable in respect of the convertible securities, rights and options referred to in subparagraph (C) of this paragraph; provided that with respect to shares referred to in clause (i) of subparagraph (c), to the extent that such warrants, options, rights or conversion privileges are not exercised, such shares shall be deemed to be outstanding only until the expiration dates of the warrants, rights, options or conversion privileges or the prior cancellation thereof.
C. In case the Company shall at any time subdivide its outstanding shares of Common stock into a greater number of shares, the Warrant Price in effect immediately prior to such subdivision shall be proportionately reduced and, in case the outstanding shares of the Common Stock of the Company shall be combined into a smaller number of shares, the Warrant Price in effect immediately prior to such combination shall be proportionately increased.
D. Upon each adjustment of the Warrant Price pursuant to the provisions of this Section 8, the Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, as set forth hereinafter.
(a) On each date this Warrant is exercised pursuant to the terms hereof, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If the Company shall, at any time or from time to time while this Warrant is outstanding, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which issuable upon the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this each Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately Price in effect prior to (but not including) the date on which such change shall become effective adjustment by a fraction, the numerator of which is shall be the number of shares of Common Shares outstanding immediately after giving Stock covered by the warrant and dividing the product so obtained by the adjusted Warrant Price.
E. Except upon consolidation or reclassification of the shares of Common Stock of the Company as provided for in subsection (c) hereof and except for readjustment of the Warrant Price upon expiration of warrants, rights or options as provided for in subparagraph (c) of paragraph 3 of subsection (B) hereof, the Warrant Price in effect to such at any time may not be adjusted upward or increased in any manner whatsoever.
F. Irrespective of any adjustment or change and in the denominator of which shall be warrant Price or the number of shares of Common Shares outstanding immediately prior Stock actually purchasable under the several Warrants, the Warrants theretofore and thereafter issued may continue to such change. Such adjustments shall be made successively whenever any event listed above shall occurexpress the Warrant Price per share and the number of shares purchasable thereunder as the Warrant Price per share and the number of shares purchasable were expressed in the Warrants when initially issued.
(c) G. If any (i) capital reorganization or reclassification of the share capital stock of the Company, Company (iiother than a distribution of stock in accordance with Section 10(B)) consolidation, amalgamation or consolidation or merger of the Company with another company in which corporation or the Company is not the survivor, (iii) sale, transfer or other disposition sale of all or substantially all of the Company’s its assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), corporation shall be effected, then, as a condition of such Fundamental Transactionreorganization, reclassification, consolidation, merger or Bale, lawful and adequate provision shall be made whereby the holder of each Warrantholder Warrant then outstanding shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions specified herein specified and in the Warrants and in lieu of the Warrant Shares shares of the common Stock of the Company immediately theretofore issuable purchasable and receivable upon the exercise of the Warrantrights represented by each such warrant, the highest amount such shares of such sharesstock, securities or assets as would have been issuable may be issued or payable with respect to or in exchange for a number of Warrant Shares outstanding shares of such Common Stock equal to the number of Warrant Shares shares of such Common stock immediately theretofore issuable purchasable and receivable upon the exercise of the Warrant, rights represented by each such Warrant had such Fundamental Transaction reorganization, reclassification, consolidation, merger or sale not taken place, and in any such case appropriate provision provisions shall be made with respect to the rights and interests interest of the holder of each Warrantholder Warrant then outstanding to the end that the provisions hereof thereof (including, including without limitation, provision limitation provisions for adjustment of the Warrant PricePrice and of the number of shares purchasable upon the exercise of each Warrant then outstanding) shall thereafter be applicable, applicable as nearly equivalent as may be practicable in relation to any sharesshares of stock, securities or assets thereafter deliverable upon the exercise hereof. The of each Warrant.
H. No adjustment of the Warrant Price shall be made in connection with the issuance or sale of shares of Common Stock issuable pursuant to currently outstanding options and warrants granted to officers, directors, employees, advisory directors, or affiliates of the Company.
I. Whenever the Warrant Price is adjusted as herein provided, the Company shall not effect any such Fundamental Transaction unless prior to or simultaneously (a) forthwith file with the consummation thereof Warrant Agent a certificate signed by the successor company (if other than Chairman of the Company) resulting from such consolidation, amalgamation or merger, Board or the company purchasing President or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address a Vice President of the Warrantholder appearing on Company and by the books Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, sharesshowing in detail the facts requiring such adjustment and the Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants after such adjustment and (b) cause a notice stating that such adjustment has been effected and stating the adjusted warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants to be published at least once a week for two consecutive weeks in a newspaper of general circulation in Dallas, securities Texas and in New York, New York. The Company, at its option, may cause a copy of such notice to be sent by first class mail, postage prepaid, to each registered holder of Warrants at his address appearing on the Warrant register. The Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours. The Warrant Agent shall not at any time be under any duty or assets asresponsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making such adjustment.
J. The Company may retain a firm of independent certified public accountants of recognized standing (which may be the firm that regularly examines the financial statements of the Company) selected by the Board of Directors of the Company or the Executive Committee of said Board and approved by the Warrant Agent, to make any computation required under this Section 8, and a certificate signed by such firm shall be conclusive evidence of the correctness of any computation made under this Section 8.
K. In case at any time conditions shall arise by reason of action taken by the Company which, in accordance with the foregoing provisionsopinion of the Board of Directors of the Company, the Warrantholder may be entitled to purchase, and are not adequately covered by the other obligations under this Warrant. The provisions of this paragraph Agreement and which might materially and adversely affect the rights of the holders of the Warrants, or in case at any time any such conditions are expected to arise by reason of any action contemplated by the Company, the Board of Directors of the Company shall appoint a firm of independent certified public accountants of recognized standing (cwhich may be the firm that regularly examines the financial statements of the Company), who shall give their opinion as to the adjustment, if any (not inconsistent with the standards established in this Section 8), of the Warrant Price and the number of shares of Common Stock purchasable pursuant hereto (including, if necessary, any adjustment as to the property which may be purchasable in lieu thereof upon exercise of the Warrants) which is, or would be, required to preserve without dilution the rights of the holders of the Warrants. The Board of Directors of the Company shall similarlymake the adjustment recommended forthwith upon the receipt of such opinion or the taking of any such action contemplated, as the case may be; provided, however, that no adjustment of the Warrant Price shall be made which in the opinion of the accountant or firm of accountants giving the aforesaid opinion would result in an increase of the Warrant Price to more than the Warrant Price then in effect except as otherwise provided in subsection E of this Section 8.
Appears in 1 contract
Warrant Price; Adjustments. Subject A. The price at which Common Stock shall be purchasable upon exercise of Warrants at any time after the Common Stock and Warrants become separately tradable until ____________ (hereinafter called the "Warrant Price") shall be $9.00 per share of common stock or, if adjusted as provided in this Section, shall be such price as so adjusted.
B. The Warrant Price shall be subject to adjustment from time to time as follows:
(1) Except as hereinafter provided, in case the Company shall at any time or from time to time after the date hereof issue any additional shares of Common Stock for a consideration per share less than the Warrant Price in effect immediately prior to the issuance of such additional shares, or without consideration, then, upon each such issuance, the Warrant Price in effect immediately prior to the issuance of such additional shares shall forthwith be reduced to a price (calculated to the nearest full cent) determined by dividing:
(a) An amount equal to (i) the total number of shares of Common Stock outstanding immediately prior to such issuance multiplied by the Warrant Price in effect immediately prior to such issuance, plus (ii) the consideration, if any, received by the Company upon such issuance, by
(b) The total number of shares of Common Stock outstanding immediately after the issuance of such additional shares.
(2) The Company shall not be required to make any such adjustment of the Warrant Price in accordance with the foregoing if the amount of such adjustment shall be less than $0.05 (adjustment will be made when cumulative adjustment equals or exceeds $0.05) but in such case the Company shall maintain a cumulative record of the Warrant Price as it would have been in the absence of this provision (the "Constructive Warrant Price"), and for the purpose of computing a new Warrant Price after the next subsequent issuance of additional shares (but not for the purpose of determining whether an adjustment thereof is required under the terms of this paragraph) the constructive Warrant Price shall be deemed to be the Warrant Price in effect immediately prior to such issuance.
(3) For the purpose of this Section 8 the following provisions shall also be applicable:
(a) In the case of the issuance of additional shares of Common Stock for cash, the consideration received by the Company therefor shall be deemed to be the net cash proceeds received by the Company for such shares before deducting any commissions or other expenses paid or incurred by the Company for any underwriting of, or otherwise in connection with, the issuance of such shares.
(b) In case of the issuance (otherwise than upon conversion or exchange of shares of Common stock) of additional shares of Common Stock for a consideration other than cash or a consideration a part of which shall be other than cash, the amount of the consideration other than cash received by the Company for such shares shall be deemed to be the value of such consideration as determined in good faith by the Board of Directors of the Company, as of the date of the adoption of the resolution of said Board, providing for the issuance of such shares for consideration other than cash or for consideration a part of which shall be other than cash, such fair value to include goodwill and other intangibles to the extent determined in good faith by the Board.
(c) In case of the issuance by the Company after the date hereof of any security (other than the Warrants) that is convertible into shares of Common Stock or of any warrants, rights or options to purchase shares of Common stock (except the options and warrants referred to in subsection H of this Section 8), (i) the Company shall be deemed (as provided in subparagraph (e) below) to have issued the maximum number of shares of Common Stock deliverable upon the exercise of such conversion privileges or warrants, rights or options, and (ii) the consideration therefor shall be deemed to be the consideration received by the Company for such convertible securities or for such warrants, rights or options, as the case may be, before deducting therefrom any expenses or commissions incurred or paid by the Company for any underwriting of, or otherwise in connection with, the issuance of such convertible security or warrants, rights or options, plus (A) the minimum consideration or adjustment payment to be received by the Company in connection with such conversion, or (B) the minimum price at which shares of Common Stock are to be delivered upon exercise of such warrants, rights or options or, if no minimum price is specified and such shares are to be delivered at an option price related to the market value of the subject shares, an option price bearing the same relation to the market value of the subject shares at the time such warrants, rights or options were granted; provided that as to such options such further adjustment as shall be necessary on the basis of the actual option price at the time of exercise shall be made at such time if the actual option price is less than the aforesaid assumed option price. No further adjustment of the Warrant Price shall be made as a result of the actual issuance of the shares of Common Stock referred to in this subparagraph (c). on the expiration of such warrants, rights or options, or the termination of such right to convert, the Warrant Price shall be readjusted to such Warrant Price as would have pertained had the adjustments made upon the issuance of such warrants, rights, options or convertible securities been made upon the basis of the delivery of only the number of shares of Common Stock actually delivered upon the exercise of such warrants, rights or options or upon the conversion of such securities.
(d) For the purposes hereof, any additional shares of Common Stock issued as a stock dividend shall be deemed to have been issued for no consideration.
(e) The number of shares of Common Stock at any time outstanding shall include the aggregate number of shares deliverable in respect of the convertible securities, rights and options referred to in subparagraph (C) of this paragraph; provided that with respect to shares referred to in clause (i) of subparagraph (c), to the extent that such warrants, options, rights or conversion privileges are not exercised, such shares shall be deemed to be outstanding only until the expiration dates of the warrants, rights, options or conversion privileges or the prior cancellation thereof.
C. In case the Company shall at any time subdivide its outstanding shares of Common stock into a greater number of shares, the Warrant Price in effect immediately prior to such subdivision shall be proportionately reduced and, in case the outstanding shares of the Common Stock of the Company shall be combined into a smaller number of shares, the Warrant Price in effect immediately prior to such combination shall be proportionately increased.
D. Upon each adjustment of the Warrant Price pursuant to the provisions of this Section 8, the Warrant Price shall be determined, and the Warrant Price and number of Warrant Shares subject to this Warrant shall be subject to adjustment from time to time, as set forth hereinafter.
(a) On each date this Warrant is exercised pursuant to the terms hereof, the Warrant Price per Warrant Share shall be determined as set forth in Exhibit A (as such dollar amount per share may be adjusted pursuant to this Section 8, the “Warrant Price”).
(b) If the Company shall, at any time or from time to time while this Warrant is outstanding, pay a dividend or make a distribution on its Common Shares in Common Shares, subdivide its issued and outstanding Common Shares into a greater number of shares or combine its issued and outstanding Common Shares into a smaller number of shares or issue by reclassification of its issued and outstanding Common Shares any of its share capital (including any such reclassification in connection with a consolidation or merger in which issuable upon the Company is the continuing company), then the number of Warrant Shares purchasable upon exercise of this each Warrant shall be adjusted by multiplying the number of Warrant Shares purchasable upon exercise of this Warrant immediately Price in effect prior to (but not including) the date on which such change shall become effective adjustment by a fraction, the numerator of which is shall be the number of shares of Common Shares outstanding immediately after giving Stock covered by the warrant and dividing the product so obtained by the adjusted Warrant Price.
E. Except upon consolidation or reclassification of the shares of Common Stock of the Company as provided for in subsection (c) hereof and except for readjustment of the Warrant Price upon expiration of warrants, rights or options as provided for in subparagraph (C) of paragraph 3 of subsection (B) hereof, the Warrant Price in effect to such at any time may not be adjusted upward or increased in any manner whatsoever.
F. Irrespective of any adjustment or change and in the denominator of which shall be Warrant Price or the number of shares of Common Shares outstanding immediately prior Stock actually purchasable under the several Warrants, the Warrants theretofore and thereafter issued may continue to such change. Such adjustments shall be made successively whenever any event listed above shall occurexpress the Warrant Price per share and the number of shares purchasable thereunder as the Warrant Price per share and the number of shares purchasable were expressed in the Warrants when initially issued.
(c) G. If any (i) capital reorganization or reclassification of the share capital stock of the Company, Company (iiother than a distribution of stock in accordance with Section 10(B)) consolidation, amalgamation or consolidation or merger of the Company with another company in which corporation or the Company is not the survivor, (iii) sale, transfer or other disposition sale of all or substantially all of the Company’s its assets to another company or (iv) purchase offer, tender offer or exchange offer pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other shares, securities or assets and such offer has been accepted by the holders of more than 50% of the outstanding Common Shares (each a “Fundamental Transaction”), corporation shall be effected, then, as a condition of such Fundamental Transactionreorganization, reclassification, consolidation, merger or sale, lawful and adequate provision shall be made whereby the holder of each Warrantholder Warrant then outstanding shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions specified herein specified and in the Warrants and in lieu of the Warrant Shares shares of the Common Stock of the Company immediately theretofore issuable purchasable and receivable upon the exercise of the rights represented by each such Warrant, the highest amount such shares of such sharesstock, securities or assets as would have been issuable may be issued or payable with respect to or in exchange for a number of Warrant Shares outstanding shares of such Common Stock equal to the number of Warrant Shares shares of such Common Stock immediately theretofore issuable purchasable and receivable upon the exercise of the Warrant, rights represented by each such Warrant had such Fundamental Transaction reorganization, reclassification, consolidation, merger or sale not taken place, and in any such case appropriate provision provisions shall be made with respect to the rights and interests interest of the holder of each Warrantholder Warrant then outstanding to the end that the provisions hereof thereof (including, including without limitation, provision limitation provisions for adjustment of the Warrant PricePrice and of the number of shares purchasable upon the exercise of each Warrant then outstanding) shall thereafter be applicable, applicable as nearly equivalent as may be practicable in relation to any sharesshares of stock, securities or assets thereafter deliverable upon the exercise hereof. The of each Warrant.
H. No adjustment of the Warrant Price shall be made in connection with the issuance or sale of shares of Common Stock issuable pursuant to currently outstanding options and warrants granted to officers, directors, employees, advisory directors, or affiliates of the Company.
I. Whenever the Warrant Price is adjusted as herein provided, the Company shall not effect any such Fundamental Transaction unless prior to or simultaneously (a) forthwith file with the consummation thereof Warrant Agent a certificate signed by the successor company (if other than Chairman of the Company) resulting from such consolidation, amalgamation or merger, Board or the company purchasing President or otherwise acquiring such assets or other appropriate company or entity shall assume the obligation to deliver to the Warrantholder, at the last address a Vice President of the Warrantholder appearing on Company and by the books Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company, sharesshowing in detail the facts requiring such adjustment and the Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants after such adjustment and (b) cause a notice stating that such adjustment has been effected and stating the adjusted Warrant Price and the number of shares of Common Stock purchasable upon exercise of the Warrants to be published at least once a week for two consecutive weeks in a newspaper of general circulation in Denver, securities Colorado and in New York, New York. The Company, at its option, may cause a copy of such notice to be sent by first class mail, postage prepaid, to each registered holder of Warrants at his address appearing on the Warrant register. The Warrant Agent shall have no duty with respect to any such certificate filed with it except to keep the same on file and available for inspection by holders of Warrants during reasonable business hours. The Warrant Agent shall not at any time be under any duty or assets asresponsibility to any holder of a Warrant to determine whether any facts exist which may require any adjustment of the Warrant Price, or with respect to the nature or extent of any adjustment of the Warrant Price when made, or with respect to the method employed in making such adjustment.
J. The Company may retain a firm of independent certified public accountants of recognized standing (which may be the firm that regularly examines the financial statements of the Company) selected by the Board of Directors of the Company or the Executive Committee of said Board and approved by the Warrant Agent, to make any computation required under this Section 8, and a certificate signed by such firm shall be conclusive evidence of the correctness of any computation made under this Section 8.
K. In case at any time conditions shall arise by reason of action taken by the Company which, in accordance with the foregoing provisionsopinion of the Board of Directors of the Company, the Warrantholder may be entitled to purchase, and are not adequately covered by the other obligations under this Warrant. The provisions of this paragraph Agreement and which might materially and adversely affect the rights of the holders of the Warrants, or in case at any time any such conditions are expected to arise by reason of any action contemplated by the Company, the Board of Directors of the Company shall appoint a firm of independent certified public accountants of recognized standing (cwhich may be the firm that regularly examines the financial statements of the Company), who shall give their opinion as to the adjustment, if any (not inconsistent with the standards established in this Section 8), of the Warrant Price and the number of shares of Common Stock purchasable pursuant hereto (including, if necessary, any adjustment as to the property which may be purchasable in lieu thereof upon exercise of the Warrants) which is, or would be, required to preserve without dilution the rights of the holders of the Warrants. The Board of Directors of the Company shall similarlymake the adjustment recommended forthwith upon the receipt of such opinion or the taking of any such action contemplated, as the case may be; provided, however, that no adjustment of the Warrant Price shall be made which in the opinion of the accountant or firm of accountants giving the aforesaid opinion would result in an increase of the Warrant Price to more than the Warrant Price then in effect except as otherwise provided in subsection E of this Section 8.
Appears in 1 contract
