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AmeriCredit Corp. WARRANT 1,000,000 shares of Common Stock

Warrant Agreement

AmeriCredit Corp. 

WARRANT 

1,000,000 shares of Common Stock | Document Parties: AmeriCredit Class C Note Funding Trust, AmeriCredit Financial Services, Inc, AFS SenSub Corp, Wachovia Bank, National Association, Wachovia Capital Markets, LLC | Wachovia Investment Holdings, LLC | Wells Fargo Bank, National Association You are currently viewing:
This Warrant Agreement involves

AmeriCredit Class C Note Funding Trust, AmeriCredit Financial Services, Inc, AFS SenSub Corp, Wachovia Bank, National Association, Wachovia Capital Markets, LLC | Wachovia Investment Holdings, LLC | Wells Fargo Bank, National Association

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Title: AmeriCredit Corp. WARRANT 1,000,000 shares of Common Stock
Governing Law: Texas     Date: 10/1/2008
Industry: Consumer Financial Services     Sector: Financial

AmeriCredit Corp. 

WARRANT 

1,000,000 shares of Common Stock, Parties: americredit class c note funding trust  americredit financial services  inc  afs sensub corp  wachovia bank  national association  wachovia capital markets  llc , wachovia investment holdings  llc , wells fargo bank  national association
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Exhibit 10.3

Execution Copy

THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY OTHER SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF (1) AN EFFECTIVE REGISTRATION STATEMENT COVERING SUCH SECURITIES UNDER THE SECURITIES ACT AND ANY OTHER APPLICABLE SECURITIES LAWS, OR (2) AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.

AmeriCredit Corp.

WARRANT

1,000,000 shares of Common Stock

September 25, 2008

This WARRANT (this “ Warrant ”) of AmeriCredit Corp., a Texas corporation (the “ Company ”), is being issued to Wachovia Investment Holdings, LLC, a Delaware limited liability company (the “ Recipient ”), in connection with (i) that certain Loan and Security Agreement, dated September 25, 2008, among AmeriCredit Class B Note Funding Trust, AmeriCredit Financial Services, Inc., AFS SenSub Corp., Wachovia Bank, National Association, Wachovia Capital Markets, LLC, and Wells Fargo Bank, National Association, and (ii) that certain Loan and Security Agreement, dated September 25, 2008, among AmeriCredit Class C Note Funding Trust, AmeriCredit Financial Services, Inc., AFS SenSub Corp., Wachovia Bank, National Association, Wachovia Capital Markets, LLC, and Wells Fargo Bank, National Association.

1. Issuance of Warrant . For value received, the Company hereby grants to the Recipient and its permitted successors and assigns (collectively, the “ Holder ”) the right to purchase from the Company up to 1,000,000 shares of the Company’s common stock, par value $0.01 per share (the “ Common Stock ”) (such shares underlying this Warrant, the “ Warrant Shares ”), at a per share purchase price equal to $13.55 (the “ Exercise Price ”), subject to the terms, conditions and adjustments set forth below in this Warrant.

2. Expiration of Warrant . This Warrant shall expire at 5:00 PM, prevailing Eastern time, on September 24, 2015 (the “ Expiration Date ”).

3. Exercise of Warrant . This Warrant shall be exercisable pursuant to the terms of this Section 3 .

3.1 Manner of Exercise .

(a) This Warrant may only be exercised by the Holder hereof on or prior to the Expiration Date, in accordance with the terms and conditions hereof, in whole or in part (but not as to fractional shares), during the Company’s normal business hours on any day other than a Saturday or a Sunday or a day on which commercial banking institutions in New York, New York are authorized by law to be closed (a “ Business Day ”), by surrender of this Warrant to the Company at its office maintained pursuant to Section 10.2(a) hereof, accompanied by a written exercise notice in the form attached as Exhibit A hereto (or a reasonable facsimile thereof) duly executed by the Holder, together with the payment of the aggregate Exercise Price for the number of Warrant Shares purchased upon exercise of


this Warrant. Upon surrender of this Warrant, the Company shall cancel this Warrant document and shall, in the event of partial exercise, replace it with a new Warrant document in accordance with Section 3.3 . Notwithstanding the foregoing, the Company shall not be required to issue a Warrant covering less than 1,000 shares of Common Stock.

(b) Except as provided for in Section 3.1(c) below, each exercise of this Warrant must be accompanied by payment in full of the aggregate Exercise Price in cash, by cashier’s check or wire transfer of immediately available funds for the number of Warrant Shares being purchased by the Holder upon such exercise.

(c) The aggregate Exercise Price for the number of Warrant Shares being purchased may also, in the sole discretion of the Holder, be paid in full or in part on a “cashless basis” at the election of the Holder in the form of Warrant Shares withheld by the Company from the Warrant Shares otherwise to be received upon exercise of this Warrant having an aggregate Fair Market Value on the date of exercise equal to the aggregate Exercise Price of the Warrant Shares being purchased by the Holder. For purposes of this Warrant, the term “ Fair Market Value ” means with respect to a particular date, the volume weighted average trading price of the Common Stock on and as reported by the principal securities exchange on which the Common Stock is then listed or admitted to trading for the ten (10) trading days immediately preceding such date, or, if the Common Stock is not listed or admitted to trading on any securities exchange, as determined in good faith and in a commercially reasonable manner by resolution of the Board of Directors of the Company, based on the best information available to it.

For purposes of illustration of a cashless exercise of this Warrant under Section 3.1(c) , the calculation of such exercise shall be as follows:

 

 

 

 

 

 

 

 

 

 

X = Y (A-B)/A

 

where:

 

 

 

X

 

=

 

the number of Warrant Shares to be issued to the Holder (rounded up to the nearest whole share)

 

 

 

Y

 

=

 

the number of Warrant Shares with respect to which this Warrant is being exercised

 

 

 

A

 

=

 

the Fair Market Value of the Common Stock

 

 

 

B

 

=

 

the Exercise Price

(d) For purposes of Rule 144 and sub-section (d)(3)(x) thereof, it is intended, understood, and acknowledged that such amount of Common Stock that is issued in exchange for non-cash consideration upon exercise of this Warrant and in accordance with Section 3.1(c) above shall be deemed to have been acquired at the time this Warrant was issued.

3.2 When Exercise Effective . Each exercise of this Warrant shall be deemed to have been effected immediately prior to the close of business on the Business Day on which this Warrant shall have been duly surrendered to the Company as provided in Sections 3.1 and 12 hereof, and, at such time, the Holder in whose name any certificate or certificates for Warrant Shares shall be issuable upon exercise as provided in Section 3.3 hereof shall be deemed to have become the holder or holders of record thereof of the number of Warrant Shares purchased upon exercise of this Warrant.

 

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3.3 Delivery of Common Stock Certificates and New Warrant . As soon as reasonably practicable after each exercise of this Warrant, in whole or in part, and in any event within ten (10) Business Days thereafter, the Company, at its expense (including the payment by it of any applicable issue taxes), will cause to be issued in the name of and delivered to the Holder hereof or, subject to Sections 9 and 10 hereof, as the Holder (upon payment by the Holder of any applicable transfer taxes) may direct:

(a) a certificate or certificates (with appropriate restrictive legends, as applicable) for the number of duly authorized, validly issued, fully paid and nonassessable Warrant Shares to which the Holder shall be entitled upon exercise; and

(b) in case exercise is in part only, a new Warrant document of like tenor, dated the date hereof, for the remaining number of Warrant Shares issuable upon exercise of this Warrant after giving effect to the partial exercise of this Warrant.

3.4 Fractional Warrant Shares . The Company shall not be required to issue fractional Warrant Shares on the exercise of this Warrant. If any fraction of a Warrant Share would, except for the provisions of this Section 3.4 , be issuable on the exercise of this Warrant (or specified portion thereof), the Company shall round up such fractional share to the nearest whole share.

3.5 Compliance with Law .

(a) Notwithstanding anything in this Warrant to the contrary, in no event shall a Holder be entitled to exercise this Warrant unless (i) a registration statement filed under the Securities Act of 1933, as amended (the “ Securities Act ”), in respect of the issuance of the Warrant Shares is then effective or (ii) an exemption from the registration requirements is available under the Securities Act for the issuance of the Warrant Shares at the time of such exercise.

(b) If any shares of Common Stock required to be reserved for purposes of exercise of this Warrant require, under any other Federal or state law or applicable governing rule or regulation of any national securities exchange, registration with or approval of any governmental authority, or listing on any such national securities exchange before such shares may be issued upon exercise, the Company will at its own expense use its best efforts to cause such shares to be duly registered or approved by such governmental authority or listed on the relevant national securities exchange, as the case may be.

3.6 Limitations on Settlement by the Company . Notwithstanding anything herein to the contrary, in no event shall the Company be required to deliver Warrant Shares in connection with the exercise of this Warrant in excess of 4,000,000 shares of Common Stock (the “ Capped Number ”). The Company represents and warrants that the Capped Number is equal to or less than the sum of (a) the number of authorized but unissued shares of Common Stock and (b) the number of treasury shares, in each case, of the Company that are not reserved for future issuance in connection with transactions in the shares of the capital stock of the Company (other than this Warrant) on the date of this Warrant (such shares, the “ Available Shares ”). In the event the Company shall not have delivered the full number of Warrant Shares, up to the Capped Number, otherwise deliverable as a result of the Company not having sufficient authorized but unissued shares of capital stock available at the time or times that this Warrant is exercised (the resulting deficit, the “ Deficit Shares ”), the Company shall be continually obligated to deliver, from time to time until the full number of Deficit Shares have been delivered pursuant to this paragraph, Warrant Shares when, and to the extent, that (i) shares of capital stock are repurchased, acquired or otherwise received by the Company or any of its subsidiaries after the date of exercise of this Warrant (whether or not in exchange for cash, fair value or any other consideration), (ii) authorized and unissued shares of capital stock reserved for issuance in respect of other transactions become no longer so

 

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reserved and (iii) the Company additionally authorizes any unissued shares of capital stock. The Company shall immediately notify Holder of the occurrence of any of the foregoing events (including the number of shares of capital stock subject to clause (i), (ii) or (iii) and the corresponding number of shares of capital stock to be delivered) and promptly deliver such Warrant Shares thereafter. The Company shall not take any action to decrease the number of Available Shares below the Capped Number.

4. Certain Adjustments . For so long as this Warrant is outstanding:

4.1 Mergers or Consolidations . If at any time after the date hereof, there shall be a capital reorganization (other than a combination or subdivision of Common Stock otherwise provided for herein) resulting in a reclassification to or change in the securities issuable upon exercise of this Warrant (a “ Reorganization ”), or a merger or consolidation of the Company with another corporation, partnership, limited liability company, or business organization (a “ Person ” or the “ Persons ”) (other than a merger with another Person in which the Company is a continuing corporation and which does not result in any reclassification or change in the securities issuable upon exercise of this Warrant or a merger effected exclusively for the purpose of changing the domicile of the Company) (a “ Merger ”), then, as a part of such Reorganization or Merger, lawful provision and adjustment shall be made so that the Holder shall thereafter be entitled to receive, upon exercise of this Warrant, the number of shares of stock or any other equity or debt securities or property to which the Holder would have been entitled upon consummation of the Reorganization or Merger if such Holder had exercised this Warrant immediately prior to such Reorganization or Merger. In any such case, appropriate adjustment shall be made in the application of the provisions of this Warrant with respect to the rights and interests of the Holder after the Reorganization or Merger to the end that the provisions of this Warrant (including adjustment of the Exercise Price then in effect and the number of Warrant Shares) shall be applicable after that event, as near as reasonably may be, in relation to any shares of stock, securities, property or other assets thereafter deliverable upon exercise of this Warrant. The Company will not effect any Reorganization or Merger unless prior to the consummation thereof each corporation or entity (other than the Company) which may be required to deliver any securities or other property upon the exercise of the Warrant as provided herein shall assume in a written agreement the obligation to deliver to the Holder such securities or other property as (in accordance with the foregoing provisions) the Holder may be entitled to receive and agreeing and confirming that this Warrant shall continue in full force and effect, enforceable against the Company and such corporation or entity in accordance with the terms thereof and hereof. The foregoing provisions of this Section 4.1 shall similarly apply to successive Reorganizations and Mergers.

4.2 Splits and Subdivisions; Dividends . In the event the Company should at any time or from time to time (a) effectuate a split or subdivision of the outstanding shares of Common Stock, (b) pay a dividend in or make a distribution payable in additional shares of Common Stock or other securities that are convertible or exchangeable or exercisable into shares of Common Stock (“ Common Stock Equivalents ”), or (c) issue by reclassification of its Common Stock any other capital stock of the Company, in each case without payment of any consideration by such holder for the additional shares of Common Stock or Common Stock Equivalents (including the additional shares of Common Stock issuable upon conversion or exercise thereof), then, as of the applicable record date (or the date of such distribution, split, subdivision or reclassification if no record date is fixed), the per share Exercise Price shall be appropriately decreased and the number of Warrant Shares shall be appropriately increased in proportion to such increase (or potential increase) of outstanding shares; provided, however , that no adjustment shall be made in the event the split, subdivision, dividend, distribution or reclassification is not effectuated. The adjustment pursuant to this Section 4.2 shall be made successively each time that any event listed in this Section 4.2 above shall occur.

4.3 Combination of Shares . If the number of shares of Common Stock outstanding at any time after the date hereof is decreased by a combination or reverse split of the outstanding shares of Common Stock, the per share Exercise Price shall be appropriately increased and the number of shares of Warrant Shares shall be appropriately decreased in proportion to such decrease in outstanding shares.

 

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4.4 Cash Dividends and Other Distributions . If, when the Exercise Price is greater than the Fair Market Value, the Company shall distribute to holders of Common Stock (a) any dividend or other distribution of cash, evidences of its indebtedness, or any other properties or securities (other than any dividend or distribution described in Section 4.2 ) or (b) any options, warrants, or other rights to subscribe for or purchase any of the foregoing (other than any rights, options, warrants, or securities described below), the Holder shall thereafter be entitled, in addition to the Warrant Shares receivable upon exercise of the Warrant, to receive, upon the exercise of the Warrant, the same cash, evidences of indebtedness, other property or securities, or options, warrants or other rights to subscribe for or purchase the foregoing that the Holder would have received if such Holder had exercised this Warrant immediately prior to such distribution. At the time of such distribution, the Company shall make appropriate reserves to ensure the timely performance of the provisions of this Section 4.4 ; provided, however , that the Holder shall not be entitled to receive any of the foregoing upon the exercise of this Warrant (i) if, at the time of such distribution, the Company makes the same distribution to the Holder of this Warrant as it makes to holders of Common Stock pro rata based on the number of shares of Common Stock for which this Warrant is exercisable (whether or not currently exercisable), or (ii) as a result of the issuance or other sale by the Company of any of its shares of Common Stock upon (A) the conversion or exchange of any of the Company’s preferred stock, warrants, options or other convertible or exchangeable securities, provided , such preferred stock, warrants, options or other convertible or exchangeable securities are outstanding as of the date of this Warrant, (B) the grant or exercise of any stock options, restricted stock, restricted stock units, stock appreciation rights or other forms of stock or stock-based rights granted to officers, directors or employees of the Company pursuant to a stock option plan, benefit plan or incentive plan of the Company, whether in effect as of the date of this Warrant or approved by the Board of Directors of the Company after the date of this Warrant, or (C) the grant or issuance of rights to holders of Common Stock pursuant to a rights offering.

4.5 Redemptions; Tender Offers; Exchange Offers . In the event that the Company or any subsidiary of the Company shall, directly or indirectly, redeem, purchase or otherwise acquire shares of Common Stock pursuant to a plan of redemption, tender offer or exchange offer for a price per share of Common Stock that is greater than the Fair Market Value of a share of Common Stock (calculated as of the end of the trading day on the day on which such tender offer or exchange offer expires), then the Exercise Price shall be adjusted to a number determined by multiplying the Exercise Price immediately before such redemption, acquisition or exchange by a fraction of which the denominator shall be the then Fair Market Value per share of Common Stock immediately prior to such event and the numerator shall be the result of dividing (a) an amount equal to (i) the product of the number of shares of Common Stock outstanding and the Fair Market Value per share of Common Stock, in each case immediately prior to such event minus (ii) the aggregate consideration paid by the Company in such event (plus, in the case of such options, rights or convertible or exchangeable securities, the aggregate additional consideration to be paid by the Company upon exercise, conversion or exchange), by (b) the number of shares of Common Stock outstanding immediately after such redemption, acquisition or exchange.

4.6 Certain Issuances .

(a) Without duplication of any other items contained in the Warrant, if at any time or from time to time the Company shall issue (i) Common Stock at a price per share that is lower at the date of such issuance than the then current Fair Market Value or (ii) rights, options, or warrants for, or securities convertible or exchangeable into, Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stock at a price per share that is lower at the date of such issuance than the then current Fair Market Value, then the number of shares of Common Stock thereafter purchasable

 

5


upon the exercise of the Warrant shall be determined by multiplying the number of shares of Common Stock theretofore purchasable upon exercise of the Warrant by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such Common Stock, rights, options, warrants, or convertible or exchangeable securities (assuming the exercise or conversion of all then outstanding rights, options, warrants or convertible or exchangeable securities) plus the number of additional shares of Common Stock offered for subscription or purchase or into which such securities are convertible or exchangeable, and the denominator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such Common Stock, rights, options, warrants, or convertible or exchangeable securities (assuming the exercise or conversion of all then outstanding rights, options, warrants or convertible or exchangeable securities) plus the total number of shares of Common Stock that could be purchased with the aggregate consideration received through issuance of such Common Stock, rights, options, warrants, or convertible or exchangeable securities at the then current Exercise Price. In the event of any such adjustment, the Exercise Price shall be adjusted to a number determined by dividing the Exercise Price immediately before such date of issuance by the aforementioned fraction. Such adjustment shall be made whenever such shares of Common Stock, rights, options, warrants, or convertible or exchangeable securities are issued and shall become effective retroactively immediately after the date on which such Persons became entitled to receive such shares of Common Stock, rights, options, warrants or convertible or exchangeable securities.

(b) This Section 4.6 shall not apply to issuances of Common Stock, rights, options, warrants, or convertible or exchangeable securities resulting from or in connection with:

(i) an issuance of Common Stock, rights, warrants, options and/or convertible or exchangeable securities in connection with any financing transaction, including, without limitation, senior or subordinated notes, securitizations or similar transactions, commercial bank or non-bank facilities, commitments or arrangements, bridge financing or back-stop facilities, commitments or arrangements, whole-loan purchase facilities, commitments or arrangements, forward purchase facilities, commitments or arrangements, or other similar facilities, commitments, arrangements or issuances of debt obligations or securities,

(ii) the conversion or exchange of any of the Company’s preferred stock, warrants, options or other convertible or exchangeable securities, provided , such preferred stock, warrants, options or other convertible or exchangeable securities are outstanding as of the date of this Warrant or were issued in connection with a transaction set out in Section 4.6(b)(i) ,

(iii) the grant or exercise of any stock options, restricted stock, restricted stock units, stock appreciation rights or other forms of stock or stock-based rights granted to officers, directors or employees of the Company pursuant to a stock option plan, benefit plan or incentive plan of the Company, whether in effect as of the date of this Warrant or approved by the Board of Directors of the Company after the date of this Warrant,

(iv) the exercise of the Warrant,

(v) a Merger or Reorganization,

(vi) a bona fide firm commitment public offering or a best efforts public offering of the Common Stock of the Company, any of which that is consummated more than ninety (90) days following the date hereof, where the issuance price for shares of Common Stock in such offering is not more than 10% less than the closing sale price for the shares of Common Stock of the Company on the day that the issuance price in such offering is determined, on and as reported by the principal securities exchange on which the Common Stock is then listed or admitted to trading, or

 

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(vii) the grant or issuance of rights pursuant to a shareholder rights plan.

(c) If any Common Stock, rights, options, warrants or convertible or exchangeable securities are issued together with other obligations or securities, then an allocation shall be made of the aggregate consideration received as between such Common Stock, rights, options, warrants or convertible or exchangeable securities, on the one hand, and such other obligations or securities, on the other hand (as determined in good faith and in a commercially reasonable manner by the Board of Directors, whose determination shall be evidenced by a board resolution, a copy of which will be sent to Holders upon request), to determine a price per share for such Common Stock, rights, options, warrants or convertible or exchangeable securities for the purposes of this Section 4.6 . This Section 4.6 shall apply with equal force and effect to any amendment, revision, adjustment, or other modification of the terms of any outstanding rights, options, or warrants for, or securities convertible or exchangeable into, Common Stock if and to the extent that such amendment, revision, adjustment, or other modification has the effect of allowing the holders thereof to subscribe for or purchase shares of Common Stock at a price per share that is lower at the date of such modification than the then current Fair Market Value, subject to the provisions of Section 4.6(b) . No adjustment shall be made pursuant to this Section 4.6 that would have the effect of decreasing the number of shares of Common Stock purchasable upon exercise of the Warrant or of increasing the Exercise Price.

4.7 Superseding Adjustment . Upon the expiration of any rights, options, warrants, or conversion or exchange privileges that resulted in any adjustment pursuant to this Section 4 , if any thereof shall not have been exercised, the number of Warrant Shares purchasable upon the exercise of this Warrant shall be readjusted as if (a) the only shares of Common Stock issuable upon exercise of such rights, options, warrants, or conversion or exchange privileges were the shares of Common Stock, if any, actually issued upon the exercise of such rights, options, warrants, or conversion or exchange privileges and (b) shares of Common Stock actually issued, if any, were issuable for the consideration actually received by the Company upon such exercise plus the aggregate consideration, if any, actually received by the Company for the issuance, sale, or grant of all such rights, options, warrants, or conversion or exchange privileges whether or not exercised and the Exercise Price shall be readjusted inversely; provided, however , that no such readjustment shall (except by reason of an intervening adjustment under Section 4.2 ) have the effect of either decreasing the number of Warrant Shares purchasable upon the exercise of this Warrant or increasing the Exercise Price by an amount in excess of the amount of the adjustment to such number of Warrant Shares or to the Exercise Price initially made in respect of the issuance, sale, or grant of such rights, options, warrants, or conversion or exchange privileges.

4.8 Notices of Record Date, Etc . In case:

(a) the Company shall take a record of the holders of its Common Stock (or other securities at the time receivable upon the exercise of the Warrant) for the purpose of entitling them to receive any dividend or other distribution, or any right to subscribe for, purchase or otherwise acquire any shares of stock of any class or any other securities, or to receive any other right;

(b) of any Reorganization of the Company, any Merger of the Company with or into another corporation, or any conveyance of all or substantially all of the assets of the Company to another corporation; or

(c) of any voluntary or involuntary dissolution, liquidation or winding up of the Company,

then, and in each such case, the Company shall mail or cause to be mailed to the Holder specifying, as the case may be, (i) the date on which a record is to be taken for the purpose of such dividend, distribution or

 

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right, and stating the amount and character of such dividend, distribution or right, or (ii) the date on which such Reorganization, Merger, conveyance, dissolution, liquidation or winding up is to take place, and the time, if any, which is to be fixed, as to which the holders of record of Common Stock (or such other securities at the time receivable upon the exercise of the Warrant) shall be entitled to exchange their shares of Common Stock (or such other securities) for securities or other property deliverable upon such Reorganization, Merger, conveyance, dissolution, liquidation or winding up. Such notice shall be mailed at least ten (10) days prior to the date therein specified and the Warrant may be exercised prior to said date during the term of the Warrant.

4.9 No Duplication . Notwithstanding anything else contained in this Section 4 , no single event shall result in an adjustment to either the Exercise Price or the number of Warrant Shares issuable upon exercise of the Warrant under more than one of the subsections set forth in this Section 4 so as to result in duplication.

5. No Impairment . The Company will not, by amendment of its Articles of Incorporation or Bylaws or through any consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant. Without limiting the generality of the foregoing, the Company will not take any action which results in any adjustment of the number of Warrant Shares if the total number of shares of Common Stock issuable after the action upon the exercise of this Warrant would exceed the Capped Number.

6. Chief Financial Officer’s Report as to Adjustments . With respect to each adjustment pursuant to Section 4 of this Warrant, the Company, at its expense, will promptly compute the adjustment or re-adjustment in accordance with the terms of this Warrant and cause its Chief Financial Officer to certify the computation (other than any computation of the fair value of property of the Company, as the case may be) and prepare a report setting forth, in reasonable detail, the event requiring the adjustment or re-adjustment and the amount of such adjustment or re-adjustment, the method of calculation thereof and the facts upon which the adjustment or re-adjustment is based, and the Exercise Price and the number of Warrant Shares or other securities purchasable hereunder after giving effect to such adjustment or re-adjustment, which report shall be sent by a commercial overnight courier to the Holder. The Company will also keep copies of all reports at its office maintained pursuant to Section 10.2(a) hereof and will cause them to be available for inspection at the office during normal business hours upon reasonable notice by the Holder or any prospective purchaser of the Warrant designated by the Holder thereof.

7. Reservation of Shares . The Company shall, solely for the purpose of effecting the exercis


 
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