Exhibit 4.3
WARRANT AGREEMENT, dated as of September 24, 1999 between A.C.L.N.
LIMITED, a Cyprus corporation (the "Company"), and XXXXXXX XXXXX SECURITIES,
INCORPORATED ("Xxxxxxx Xxxxx"). Any defined terms used and not otherwise defined
herein shall have the meanings ascribed to them in the Placement Agency
Agreement (as defined below).
W I T N E S S E T H
WHEREAS, Xxxxxxx Xxxxx and the Company are entering into that certain
Placement Agency Agreement of even date herewith (the "Placement Agency
Agreement") whereby Xxxxxxx Xxxxx shall act as the exclusive placement agent for
the offering for sale by the Company of a minimum of 60, and a maximum of 120,
units (each a "Unit" and collectively, the "Units"), each Unit consisting of
7,500 of the Company's Ordinary Shares, par value CYP 0.01 per share (the
"Ordinary Shares"); and
WHEREAS, in connection the Offering, the Company has agreed to sell to
Xxxxxxx Xxxxx, or its designees, for an aggregate purchase price of $1.00,
warrants to purchase, at the offering price per Share, such number of Ordinary
Shares (the "Warrants") equal to ten percent (10%) of the Ordinary Shares
contained in the Units sold in the Offering.
NOW, THEREFORE, in consideration of the payment by Xxxxxxx Xxxxx to the
Company of ONE DOLLAR, the agreements herein set forth and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Grant. Xxxxxxx Xxxxx is hereby granted the right to purchase a number
of Ordinary Shares equal to ten percent (10%) of the number of Ordinary Shares
contained in the Units sold in the Offering (the "Warrant Shares"), as such
number may be adjusted pursuant hereto, at any time from the date of the Final
Closing until 5:30 p.m., New York time, on such date that is five (5) years
after the Final Closing (the "Warrant Exercise Term"), at purchase price equal
to the offering price per Share in the Offering (the "Exercise Price") as such
price may be, from time to time, adjusted pursuant to Section 8 hereof.
2. Warrant Certificates. Simultaneous with the delivery of this Warrant
Agreement, and at each Closing hereafter, the Company shall deliver to Xxxxxxx
Xxxxx, or Xxxxxxx Xxxxx'x designee, warrant certificates evidencing Warrants to
purchase the appropriate number of Warrant Shares (the "Warrant Certificates").
Each Warrant Certificate delivered pursuant to this Agreement shall be in the
form set forth in Exhibit 1 attached hereto and made a part hereof, with such
appropriate insertions, omissions, substitutions and other variations as
required or permitted by this Agreement and shall be delivered without issuance
tax, cost or other expense of any kind to Xxxxxxx Xxxxx. The Warrant
Certificates, and the certificates representing the Warrant Shares and/or other
securities, property or rights issuable upon exercise of the Warrants, shall be
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executed on behalf of the Company by the manual or facsimile signature of the
then present Chairman or Vice Chairman of the Board of Directors or President or
Vice President of the Company attested to be the manual or facsimile signature
of the then present Secretary or Assistant Secretary or Treasurer or Assistant
Treasurer of the Company. Warrant Certificates shall be dated the date of
execution by the Company upon initial issuance notwithstanding any subsequent
division, exchange, substitution or transfer.
3. Exercise of Warrant.
3.1 Method of Exercise. A Warrant Certificate may be exercised by Xxxxxxx
Xxxxx and/or other registered holders thereof (collectively, the "Holders") by
surrender of such Warrant Certificate with the annexed Form of Election to
Purchase duly executed, together with payment of the Exercise Price by certified
or official bank check in New York Clearing House funds for the Warrant Shares
purchased, at the Company's principal offices at Xxxxxxxxxxxxxx 00, 0000
Xxxxxxx, Xxxxxxx. The Warrant Certificate may be exercised to purchase all or
part of the Warrant Shares covered thereby. In the event that any Warrant
Certificate is exercised to purchase less than all the Warrant Shares covered
thereby, the Company shall cancel said Warrant Certificate upon the surrender
thereof and shall execute and deliver a new Warrant Certificate of like tenor
for the balance of the Warrant Shares.
3.2 Exercise by Surrender of Warrant. Warrants may also be exercised, in
full or in part, without cash payment, by surrendering the Warrant Certificate
with the annexed Form of Election to Purchase duly executed in exchange for the
number of Ordinary Shares equal to the product of (i) the number of shares as to
which the Warrants are being exercised multiplied by (ii) a fraction, the
numerator of which is the Market Price (as hereinafter defined) of the Ordinary
Shares minus the Exercise Price and the denominator of which is the Market
Price. For the purposes of this Agreement, the phrase "Market Price" at any date
shall be deemed to be the last reported sale price, or, in case no such reported
sale takes place on such day, the average of the last reported sale prices for
the last five (5) trading days, in either case as officially reported by the
principal securities exchange on which the Ordinary Shares are listed or
admitted to trading, or, if the Ordinary Shares are not listed or admitted to
trading on any national securities exchange, the average closing bid price as
furnished by the National Association of Securities Dealers, Inc. ("NASD")
through The NASDAQ Stock Market ("Nasdaq"), the OTC Bulletin Board, or a similar
organization if Nasdaq is no longer reporting such information, or if the
Ordinary Shares are not quoted on Nasdaq or such a similar organization, as
determined in good faith by resolution of the Board of Directors of the Company,
based on the best information available to it.
4. Issuance of Certificates. Upon the exercise of the Warrants, the
issuance of certificates for the Warrant Shares shall be made within five (5)
business days thereafter without charge to the Holder thereof, including,
without limitation, any tax which may be payable in respect of the issuance
thereof. Such certificates shall be issued in the name of the Holder thereof.
The Warrant Certificates and the certificates representing the Warrant Shares
shall be
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duly executed on behalf of the Company. Warrant Certificates shall be dated the
date of issuance, division, exchange, substitution or transfer.
5. Transfer of Securities. Xxxxxxx Xxxxx covenants and agrees that it is
acquiring the Warrants and the Warrant Shares (collectively, the "Warrant
Securities") for its own account, for investment, and not with a view to
distribution thereof. Holders of the Warrants or Warrant Shares may transfer
such Warrants or Warrant Shares only in compliance with applicable federal and
state securities laws. In order for any transferee of any Warrant Securities to
receive any of the benefits of this Agreement, the Company must have received
notice of such transfer, at the address in Section 3.1 above, in the Form of
Assignment annexed hereto, accompanied by an opinion of counsel, which opinion
of counsel and counsel shall be reasonably acceptable to the Company, that an
exemption from registration of such Warrant Securities under the Securities Act
of 1933, as amended (the "Securities Act"), and under any applicable state
securities laws is available. Any transferee must also covenant and agree that
it is acquiring such Warrant Securities, as the case may be, as an investment
and not with a view to distribution thereof.
6. No Registration Under the Securities Act. The Warrant Securities have
not been registered under the Securities Act or any state securities or "blue
sky" laws and may not be resold except pursuant to an effective registration
statement thereunder or exemption therefrom. The Warrant Certificates and
certificates representing the Warrant Shares shall bear the legend set forth
below:
"The securities represented by this certificate have been issued without
registration under the Securities Act of 1933, as amended, or under any
state securities laws, and may not be sold, transferred or pledged in the
absence of an effective registration statement under applicable federal
and state securities laws or an opinion of counsel that the transfer is
exempt from registration under applicable federal and state securities
laws."
7. Registration Rights.
7.1 Agreement to Register. The Company shall prepare and file, within 60
days after the Final Closing Date, a registration statement under the Securities
Act with the SEC, which registration statement shall cover the resale of the
Warrant Shares (the "Registrable Shares"). The 60-day period may be extended for
a reasonable period by the Company in the case of extraordinary and mitigating
circumstances, such as a sale or merger of the Company, with Xxxxxxx Xxxxx'x
consent, which consent may not be unreasonably withheld (the "Filing Date").
7.2 Demand Registrations; Registration Procedures. In the event the
Company is unable to register the Registrable Shares pursuant to Section 7.1,
then the Company shall register the Registrable Shares under the Securities Act
on two separate occasions during the Warrant Exercise Term, at the request of
the holders of a majority of the Registrable Shares made at any time 180 days
after the Final Closing. On each such occasion, the Company shall use its best
reasonable efforts to effect the registration of any of the Registrable Shares
under the Securities
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Act; provided that, in connection with the registration hereunder and with the
registration procedures set forth below, the sellers of the Registrable Shares
shall furnish to the Company in writing such information with respect to
themselves and the proposed distribution by them as reasonably shall be
necessary in order to assure compliance with federal and applicable state
securities laws. The Company will, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement with respect
the Registrable Shares and use its best efforts to cause such registration
statement to become effective under the Securities Act as soon as reasonably
practicable thereafter and to remain effective for 120 days following the
effectiveness of such registration statement (the "Requisite Period");
(b) prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for the Requisite Period
and comply with the provisions of the Securities Act with respect to the
disposition of all of the Registrable Shares covered by such registration
statement in accordance with the intended method of disposition set forth in
such registration statement for such period;
(c) furnish to each seller of the Registrable Shares and to each
underwriter, if any, such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the intended disposition
of the Registrable Shares covered by such registration statement;
(d) use its reasonable best efforts (i) if required, to register or
qualify the Registrable Shares covered by such registration statement under the
securities or "blue sky" laws of such jurisdictions as the sellers of the
Registrable Shares, or in the case of an underwritten public offering, the
managing underwriter reasonably shall request, (ii) to prepare and file in those
jurisdictions such amendments (including post effective amendments) and
supplements, and take such other actions, as may be necessary to maintain such
registration and qualification in effect at all times for the period of
distribution contemplated thereby, and (iii) to take such further action as may
be necessary or advisable to enable the disposition of the Registrable Shares in
such jurisdictions, provided, that the Company shall not for any such purpose be
required to qualify generally to transact business as a foreign corporation in
any jurisdiction where it is not so qualified or to consent to general service
of process in any such jurisdiction;
(e) list the Registrable Shares covered by such registration statement on
the Nasdaq National Market;
(f) immediately notify each seller of Registrable Shares and each
underwriter under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event of which the Company has knowledge as a result of which
the prospectus contained in such registration statement, as then in effect,
includes any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing and promptly amend or
supplement such registration statement to correct any such untrue statement or
omission;
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(g) notify each seller of Registrable Shares of the issuance by the SEC of
any stop order suspending the effectiveness of the registration statement or the
initiation of any proceedings for that purpose and make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible time;
(h) permit a single firm of counsel designated as selling stockholders'
counsel by the holders of a majority in interest of the Registrable Shares being
registered to review the registration statement and all amendments and
supplements thereto for a reasonable period of time prior to their filing;
(i) make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period covered
thereby, an earnings statement (in form complying with the provisions of Rule
158 under the Securities Act) covering a 12-month period beginning not later
than the first day of the Company's next fiscal quarter following the effective
date of the registration statement;
(j) if the offering is an underwritten offering, enter into a written
agreement with the managing underwriter selected in the manner herein provided
in such form and containing such provisions as are usual and customary in the
securities business for such an arrangement between such underwriter and
companies of the Company's size and investment stature, including, without
limitation, customary indemnification and contribution provisions;
(k) furnish to the sellers of the Registrable Shares or the underwriter,
if any, participating in any distribution pursuant to such registration
statement on the date that the registration statement becomes effective: (i) a
copy of an opinion of counsel representing the Company for the purposes of such
registration, dated such date and addressed to the sellers and the underwriters,
if any, to the effect that such registration statement has become effective
under the Securities Act and that (A) to the best knowledge of such counsel, no
stop order suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are pending or contemplated
under the Securities Act, (B) the registration statement, the related prospectus
and each amendment or supplement thereof comply as to form in all material
respects with the requirements of the Securities Act (except that such counsel
need not express any opinion as to financial statements or other financial or
statistical information contained therein) and (C) to such other effects as
reasonably may be requested by counsel for the sellers of the Registrable Shares
and (ii) a copy of a letter dated such date from the independent public
accountants retained by the Company, addressed to the underwriters, if any,
stating that they are independent public accountants within the meaning of the
Securities Act and that, in the opinion of such accountants, the financial
statements of the Company included in the registration statement or the
prospectus, or any amendment or supplement thereof, comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five (5) business
days prior to the date of such letter) with respect to such registration as such
sellers or underwriters reasonably may request;
(l) make available for inspection by each seller of the Registrable
Shares, any underwriter participating in any distribution pursuant to such
registration statement, and any
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attorney, accountant or other agent retained by such seller or underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors and employees to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(m) provide a transfer agent and registrar, which may be a single entity,
for the Registrable Shares not later than the effective date of the Registration
Statement;
(n) take all actions reasonably necessary to facilitate the timely
preparation and delivery of certificates (not bearing any legend restricting the
sale or transfer of such securities) representing the Registrable Shares to be
sold pursuant to the registration statement and to enable such certificates to
be in such denominations and registered in such names as the sellers or any
underwriters may reasonably request without restrictive legend; and
(o) take all other reasonable actions necessary to expedite and facilitate
the registration of the Registrable Shares pursuant to the registration
statement.
7.3 Piggyback Registration. If the Company at any time (other than
pursuant to Sections 7.1 or 7.2) from the date of this Agreement through the
date of the seventh anniversary from (i) the date hereof or (ii) the Warrant
Exercise Term, whichever is longer, proposes to register any of its securities
under the Securities Act for sale to the public, whether for its own account, or
for the account of other security holders, or both, (except with respect to
registration statements on Forms S-4, F-4 or S-8 and any successor forms thereto
and except when, in the opinion of any underwriter of an underwritten public
offering of securities by the Company, inclusion of the Registrable Shares would
cause the marketing of such offering to be materially more difficult than would
be the case in the absence of the inclusion of such Registrable Shares), then
each such time the Company will give written notice to such effect to all
holders of the Registrable Shares at least 30 days prior to such filing. Each
holder of the Registrable Shares shall then have 30 days after the giving of any
such notice by the Company to request that the Company register any of such
holder's Eligible Shares (as defined below) as part of such registration. The
Company shall cause the Eligible Shares as to which such registration shall have
been so requested to be included in the securities to be covered by the
registration statement proposed to be filed by the Company, all to the extent
requisite to permit the sale or other disposition by the holder of such Eligible
Shares so registered. Notwithstanding the foregoing, in the event that any
registration pursuant to this Section 7.3 shall be, in whole or in part, an
underwritten public offering of the Ordinary Shares, the number of Eligible
Shares to be included in such an underwriting may be reduced pro rata among all
of the requesting holders based upon the number of Eligible Shares requested to
be registered by such holders if and to the extent that the managing underwriter
shall be of the good faith opinion that such inclusion would reduce the number
of shares to be offered by the Company or would materially adversely affect the
marketing of such offering by the Company; provided, that such number of
Eligible Shares shall not be reduced if any Ordinary Shares are to be included
in such underwriting for the account of any person other than the Company,
Xxxxxxx Xxxxx and its assigns or any other requesting holders of Eligible
Securities (as defined in the Registration Rights Agreement entered into between
the Company and each investor). Notwithstanding the foregoing provisions, the
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Company may withdraw any registration statement referred to in this Section 7.3
without thereby incurring any liability to the holders of Eligible Shares. For
purposes hereof, "Eligible Shares" shall mean all of the Registrable Shares
other than such Registrable Shares that are actually free of restriction on
resale under the Securities Act pursuant to Rule 144(k) or otherwise.
8. Adjustments to Number of Securities.
8.1 Subdivision and Combination. In case the Company shall at any time
subdivide or combine the outstanding Ordinary Shares, the Exercise Price shall
forthwith be proportionately decreased in the case of subdivision or increased
in the case of combination.
8.2 Adjustment in Number of Shares. Upon each adjustment of the Exercise
Price pursuant to the provisions of this Section 8, the number of Warrant Shares
issuable upon exercise of the Warrants shall be adjusted to the nearest full
amount by multiplying a number equal to the Exercise Price in effect immediately
prior to such adjustment by the number of Warrant Shares issuable upon exercise
of the Warrants immediately prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price.
8.3 Definition of Ordinary Shares. For the purpose of this Agreement, the
term "Ordinary Shares" shall mean (i) the class of stock designated as Ordinary
Shares in the Memorandum and Articles of Association of the Company as such
Memorandum and Articles of Association may be amended as of the date hereof, or
(ii) any other class of stock resulting from successive changes or
reclassifications of such Ordinary Shares consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
8.4 Merger or Consolidation. In case of any consolidation of the Company
with, or merger of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger which does not result in any
reclassification or change of the outstanding Ordinary Shares), the corporation
formed by such consolidation or merger shall execute and deliver to each Holder
a supplemental warrant agreement providing that the Holder of each Warrant then
outstanding or to be outstanding shall have the right thereafter (until the
expiration of such Warrant) to receive, upon exercise of such Warrant, the kind
and amount of Ordinary Shares and other securities and property receivable upon
such consolidation or merger, by a Holder of the number of Ordinary Shares for
which such Warrant might have been exercised immediately prior to such
consolidation or merger. Such supplemental warrant agreement shall provide for
adjustments which shall be identical to the adjustments provided in this Section
8. The above provision of this subsection 8.4 shall similarly apply to
successive consolidations or mergers.
8.5 No Adjustment of Exercise Price in Certain Cases. No adjustment of the
Exercise Price shall be made:
(a) upon the issuance of Ordinary Shares issuable upon exercise of the
Warrants contained in Units sold in the Offering;
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(b) upon the issuance of Ordinary Shares issuable upon exercise or
conversion of securities outstanding as of the date of this Warrant Agreement;
(c) upon the issuance of Ordinary Shares issued in respect of the
anti-dilution provisions of any securities of the Company; or
(d) If the amount of said adjustment shall be less than CYP 0.01 per
Warrant Share; provided, however, that in such ease any adjustment that would
otherwise be required then to be made shall be carried forward and shall be made
at the time of, and together with, the next subsequent adjustment which,
together with any adjustment so carried forward, shall amount to at least CYP
0.01 per Warrant Share.
9. Exchange and Replacement of Warrant Certificates. (a) Notwithstanding
anything herein to the contrary, each Warrant Certificate shall be exchangeable,
upon the surrender thereof by the registered Holder at the principal office of
the Company and reimbursement to the Company of all reasonable expenses
incidental thereto, for a new Warrant Certificate of like tenor and date
representing in the aggregate the right to purchase the same number of Warrant
Shares in such denominations as shall be designated by the Holder thereof at the
time of such surrender.
(b) Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of any Warrant Certificate, and,
in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrant
Certificate, if mutilated, the Company shall make and deliver a new Warrant
Certificate of like tenor, in lieu thereof.
10. Elimination of Fractional Interests. The Company shall not be required
to issue certificates representing fractions of Ordinary Shares upon the
exercise of the Warrants, nor shall it be required to issue scrip or pay cash in
lieu of fractional interests, it being the intent of the parties that all
fractional interests shall be eliminated by rounding any fraction to the
nearest whole number of Ordinary Shares or other securities, properties or
rights.
11. Reservation of Securities. The Company shall at all times reserve and
keep available out of its authorized Ordinary Shares, solely for the purpose of
issuance upon the exercise of the Warrants, such number of Ordinary Shares or
other securities, properties or rights as shall be issuable upon the exercise
thereof. The Company covenants and agrees that: upon exercise of the Warrants
and payment of the Exercise Price therefor, all Ordinary Shares and other
securities issuable upon such exercise shall be duly and validly issued, fully
paid, non-assessable and not subject to the preemptive rights of any
stockholder.
12. Notices to Warrant Holders. Nothing contained in this Agreement shall
be construed as conferring upon the Holders the right to vote for, consent to or
receive notice as a stockholder in respect of, any meetings of stockholders for
the election of directors or any other
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matter, or to confer upon the Holders any rights whatsoever as a stockholder of
the Company. If, however, at any time prior to the expiration of the Warrants
and their exercise, any of the following events shall occur:
(a) The Company intends to declare a dividend (other than a dividend
consisting solely of Ordinary Shares) or otherwise distribute to its
stockholders any assets (other than Ordinary Shares), whether issued by the
Company or by another, or any other thing of value; or
(b) The Company shall take a record of the holders of its Ordinary Shares
for the purpose of entitling them to receive a dividend or distribution payable
otherwise than in cash, or a cash dividend or distribution payable otherwise
than out of current or retained earnings, as indicated by the accounting
treatment of such dividend or distribution on the books of the Company; or
(c) The Company shall offer to all the holders of its Ordinary Shares any
additional shares of capital stock of the Company or securities convertible into
or exchangeable for shares of capital stock of the Company, or any option right
or warrant to subscribe therefor; or
(d) A dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger) or a sale of all or substantially all
of its property, assets and business as an entirety shall be proposed,
then, in any one or more of said events, the Company shall give written notice
of such event at least twenty (20) days prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
13. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made when
delivered, or mailed by registered or certified mail, return receipt requested:
(a) If to a registered Holder of Warrants, to the address of such Holder
as shown on the books of the Company; or
(b) If to the Company, to the address set forth in Section 3.1 hereof or
to such other address as the Company may designate by notice to the Holders.
14. Supplements and Amendments, Amendments to this Agreement may be made
only with the written consent of the Holders of a majority of the Warrants.
15. Successors. All the covenants and provisions of this Agreement shall
be binding upon and inure to the benefit of the Company, and the Holders and
their respective successors and assigns hereunder.
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16. Termination. This Agreement shall terminate at the close of business
on the last date of the Warrant Exercise Term.
17. Governing Law; Submission to Jurisdiction. (a) This Agreement and each
Warrant Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of New York and for all purposes shall be construed in
accordance with the laws of said State without giving effect to the rules of
said State governing the conflicts of laws.
(b) The Company and the Holders, by accepting Warrants issued pursuant to
this Agreement, hereby agree that any action, proceeding or claim against it or
them arising out of, or relating in any way to, this Agreement shall be brought
and enforced in the courts of the United States and the State of New York,
located in the City of New York, and shall be irrevocably submitted to such
jurisdiction, which jurisdiction shall be exclusive. The Company and the Holders
hereby irrevocably waive any objection to such exclusive jurisdiction or
inconvenient forum. Any process or summons to be served upon any of the Company
and the Holders (at the option of the party bringing such action, proceeding or
claim) may be served by transmitting a copy thereof, by registered or certified
mail, return receipt requested, postage prepaid, addressed to it at the address
as set forth in Section 13 hereof. Such mailing shall be deemed personal service
and shall be legal and binding upon the party so served in any action,
proceeding or claim. The Company and the Holders agree that the prevailing
party(ies) in any such action or proceeding shall be entitled to recover from
the other party(ies) all of its/their reasonable legal costs and expenses
relating to such action or proceeding and/or incurred in connection with the
preparation therefor. THE COMPANY AND THE HOLDERS AGREE TO WAIVE THEIR RIGHTS TO
A JURY TRIAL ON ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY DOCUMENT OR AGREEMENT CONTEMPLATED HEREBY.
18. Entire Agreement; Modification. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter hereof
and may not be modified or amended except as provided in Section 14 hereof or by
a writing duly signed by the party against whom enforcement of the modification
or amendment is sought.
19. Severability. If any provision of this Agreement shall be held to be
invalid and unenforceable, such invalidity or unenforceability shall not affect
any other provision of this Agreement.
20. Captions. The caption headings of the Sections of this Agreement are
for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
21. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and
Xxxxxxx Xxxxx and any other registered Holder(s) of the Warrants or Warrant
Shares any legal or equitable right, remedy or claim under this Agreement; and
this Agreement shall be for the sole and exclusive benefit of the Company
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and Xxxxxxx Xxxxx and any other Holder(s) of the Warrants or Warrant Shares.
This Agreement shall not be assignable, except as expressly permitted herein.
22. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
(Signature Page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement
to be duly executed, as of the day and year first above written.
A.C.L.N. LIMITED
By /s/ Xxxxxxxxx X. Xxxxx
--------------------------------------
Name XXXXXXXXX X. XXXXX
Title: VP-FINANCE
XXXXXXX XXXXX SECURITIES, INCORPORATED
By /s/ [ILLEGIBLE]
--------------------------------------
Name
Title:
SIGNATURE PAGE TO WARRANT AGREEMENT, DATED SEPTEMBER __, 1999
BETWEEN A.C.L.N. LIMITED, AND XXXXXXX XXXXX SECURITIES INCORPORATED
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EXHIBIT 1
[FORM OF WARRANT CERTIFICATE]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY
STATE SECURITIES LAWS, AND MAY NOT BE SOLD, TRANSFERRED OR PLEDGED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER APPLICABLE FEDERAL AND
STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY,
THAT THE TRANSFER IS EXEMPT FROM REGISTRATION UNDER APPLICABLE FEDERAL AND STATE
SECURITIES LAWS.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO
HEREIN.
No. W-
___________Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that ___________ is registered holder
of ___________ Warrants to purchase at any time after the Final Closing until
5:30 p.m. New York time on such date five (5) years after the Final Closing (the
"Expiration Date"), one fully paid and non-assessable Ordinary Share of the
Company, par value CYP 0.01 per share (the "Ordinary Shares"), of the Company at
an exercise price equal to 150% of the offering price of the Ordinary Shares in
the Offering, subject to adjustment in certain events (the "Exercise Price"),
upon surrender of this Warrant Certificate and payment of the Exercise Price at
an office or agency of the Company, or by surrender of this Warrant Certificate
in lieu of cash payment, but subject to the conditions set forth herein and in
the Warrant Agreement, dated as of September __, 1999 between the Company and
Xxxxxxx Xxxxx Securities, Incorporated ("Xxxxxxx Xxxxx") (the "Warrant
Agreement"). Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Warrant Agreement. Payment of the Exercise
Price shall be made by certified or official bank check in New York Clearing
House finds payable to the order of the Company or by any other method
permitted by the Warrant Agreement.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference in, and made a part of,
this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company, Xxxxxxx Xxxxx and the holders (the words "holders" or "holder" meaning
the registered holder or registered holders) of the Warrants.
Upon due presentment for registration of transfer of this Warrant
Certificate in accordance with the Warrant Agreement at an office or agency of
the Company, a new Warrant Certificate or Warrant Certificates of like tenor and
evidencing in the aggregate a like number of Warrants shall be issued to the
transferee(s) in exchange for this Warrant Certificate, subject to the
limitations provided herein and in the Warrant Agreement, without any charge
except for any tax or other governmental charge imposed in connection with such
transfer or as provided in the Warrant Agreement.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the holder(s) hereof as the absolute
owner(s) of this Warrant Certificate (notwithstanding any notation of ownership
or other writing hereon made by anyone), for the purpose of any exercise hereof,
and of any distribution to the holder(s) hereof, and for all other purposes, and
the Company shall not be affected by any notice to the contrary.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
duly executed under its corporate seal.
Dated as of , 1999
A.C.L.N. LIMITED
By:__________________________________
Name:
Title:
Attest:
_______________________________
Name:
Title:
A-2
FORM OF ELECTION TO PURCHASE
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase ___________ Ordinary
Shares.
In accordance with the terms of Section 3.1 of the Warrant Agreement,
dated as of September __, 1999 between A.C.L.N. Limited and Xxxxxxx Xxxxx
Securities, Incorporated (the "Warrant Agreement"), the undersigned requests
that a certificate for such securities be registered in the name of
_____________________ whose address is
______________________________________________________________ and that such
certificate be delivered to ________________ whose address is
_____________________________________________. The undersigned hereby makes the
representations and warranties stated in the Warrant Agreement to the Company.
Dated: __________
Signature ___________________________________________________
(Signature must conform in all respects to name of holder as
specified on the face of the Warrant Certificate.)
______________________________________________________________
(Insert Social Security or Other Identifying Number of Holder)
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED _________________ hereby sells, assigns and transfers
unto ___________________________________________________________________________
________________________________________________________________________________
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ____________________________,
Attorney, to transfer the within Warrant Certificate on the books of the
within-named Company, with full power of substitution.
Dated: __________
Signature ___________________________________________________
(Signature must conform in all respects to name of holder as
specified on the face of the Warrant Certificate.)
______________________________________________________________
(Insert Social Security or Other Identifying Number of Holder)
