EMPERY ASSET MASTER, LTD. v. AIT THERAPEUTICS, INC.

Index No. 651306/18. Appeal No. 14248. Case No. 2020-04156.

197 A.D.3d 1064 (2021)

154 N.Y.S.3d 57

2021 NY Slip Op 05163

Empery Asset Master, Ltd., et al., Respondents, v. AIT Therapeutics, Inc., Appellant.

Appellate Division of the Supreme Court of New York, First Department.

Decided September 30, 2021.


Attorney(s) appearing for the Case

Kasowitz Benson Torres LLP, New York ( Kim Conroy of counsel), for appellant.

Olshan Frome Wolosky LLP, New York ( Kerrin T. Klein of counsel), for respondents.

Concur— Manzanet-Daniels, J.P., Kern, Oing, Rodriguez, Higgitt, JJ.


Defendant contends that section 3(b) of plaintiffs' warrants is unambiguous and must be applied as written. This argument is unavailing. The third sentence of section 3(b) begins, "Upon each such adjustment of the Exercise Price pursuant to the immediately preceding sentence." However, the immediately preceding sentence (the second sentence) says nothing about adjusting the Exercise Price; instead, it is the first sentence of section 3(b) that addresses adjusting the Exercise...

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