Exhibit 4(i)
WARRANT AGREEMENT
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WARRANT AGREEMENT, dated as of __________ __, 1999 (the "Agreement"),
between ICF Xxxxxx International, Inc., a Delaware corporation (the "Company"),
and __________________________, as warrant agent (with any successor Warrant
Agent, the "Warrant Agent").
RECITALS
WHEREAS, the Company is engaged in a restructuring of its outstanding
debt in a recapitalization as described in the Company's Registration Statement
on Form S-4, SEC Registration No. 333-82643 filed with the Securities and
Exchange Commission (as amended, the "Registration Statement"), pursuant to
which the Company has offered to exchange convertible preferred stock and
warrants to purchase its common stock for a portion of the Company's outstanding
12% Senior Subordinated Notes due 2003 (the "Old Notes");
WHEREAS, this Agreement is to reflect the issuance and delivery by the
Company of warrant certificates (the "Warrant Certificates") evidencing warrants
(the "Warrants") to acquire, under certain circumstances, up to an aggregate of
882,000 shares, subject to adjustment, of its Common Stock (as defined below),
representing 15% of the fully diluted Common Stock of the Company; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance of the Warrant Certificates and other matters as provided in this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and for the purpose
of defining the terms and provisions of the Warrants and the respective related
rights and obligations of the Company, the Warrant Agent and the record holders
from time to time of the Warrants, the Company and the Warrant Agent agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 Certain Definitions
As used in this Agreement, the following terms shall have the
following respective meanings:
"Affiliate" of any person means any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such person. For purposes of this definition, "control" when used with respect
to any person means the power to direct the management and policies of such
person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Change of Shares" has the meaning set forth in Section 4.01(a).
"Common Equity Securities" means Common Stock and securities
convertible into, or exercisable or exchangeable for, Common Stock, or rights or
options to acquire Common Stock or such other securities, excluding the
Warrants.
"Common Stock" means the common stock, $0.01 par value per share, of
the Company, and any other capital stock of the Company into which such common
stock may be converted or reclassified or that may be issued in respect of, in
exchange for, or in substitution of, such common stock by reason of any stock
splits, stock dividends, distributions, mergers, consolidations or other like
events.
"Common Stock Distribution" has the meaning set forth in Section
4.01(b).
"Company" means ICF Xxxxxx International, Inc., a Delaware
corporation, and its successors and assigns.
"Convertible Securities" has the meaning set forth in Section
4.01(c).
"Depositary" means, with respect to the warrants issued in the form of
one or more Global Warrants, The Depository Trust Company or another Person
designated as Depositary by the Company, which must be a clearing agency
registered under the Exchange Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expiration Date" means December 31, 2004, subject to the provisions
of Section 3.05.
"Global Warrant" means a security evidencing all or a portion of the
Warrants issued to the Depositary or its nominee in accordance with Section
2.01 and bearing the legend set forth in Exhibit B.
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"Holders" means, from time to time, the holders of the Warrants.
"NASD" means the National Association of Securities Dealers, Inc.
"Nasdaq Stock Market" means The Nasdaq Stock Market, Inc.
"Non-Surviving Combination" means any merger, consolidation or other
business combination by the Company with one or more Persons (other than a
wholly-owned subsidiary of the Company) in which the Company is not the
survivor, or a sale of all or substantially all of the assets of the Company to
one or more such other Persons, if, in connection with any of the
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foregoing, consideration (other than consideration which includes Common Equity
Securities) is distributed to holders of Common Stock in exchange for all or
substantially all of their equity interest in the Company.
"Options" has the meaning set forth in Section 4.01(c)
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, or governmental unit or related agency or political
subdivision.
"Purchase Price" means the purchase price per share of Common Stock to
be paid upon the exercise of each Warrant in accordance with the terms hereof,
which price per share shall be equal to the average daily closing price of the
Common Stock for the first 20 consecutive trading days following consummation of
the recapitalization contemplated in the Registration Statement, subject to
adjustment from time to time pursuant to Article IV.
"Registration Statement" has the meaning set forth in the Recitals
above.
"Rights" has the meaning set forth in Section 4.01(c).
"Securities Act" means the Securities Act of 1933, as amended.
"Surviving Combination" means any merger, consolidation or other
business combination by the Company with one or more Persons in which the
Company is the survivor, or a purchase of substantially all of the assets of
another Person by the Company.
"Survivor" has the meaning set forth in Section 3.05(b).
"Transaction" means any transaction (including, without limitation, a
merger, consolidation, sale of all or substantially all of the Company's assets,
or recapitalization of the Common Stock) in which the previously outstanding
Common Stock shall be changed into or exchanged for different securities of the
Company or common stock or other securities of another corporation or interests
in a noncorporate entity or other property (including cash) or any combination
of any of the foregoing.
"Transfer Agent" has the meaning set forth in Section 8.01.
ARTICLE II
ORIGINAL ISSUANCE OF WARRANTS
Section 2.01 Form of Warrant Certificates
The Warrant Certificates (a) shall be issued in registered form only
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and substantially in the form attached as Exhibit A to this Agreement, (b) shall
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be dated the date of
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issuance (whether upon initial issuance, registration of transfer, exchange or
replacement), (c) shall show the date of countersignature and (d) shall contain
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such legends and endorsements, each as provided by the Company, typed, stamped,
printed, lithographed or engraved, as the Company may deem appropriate and as
are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation pursuant to any
law or with any rule or regulation of any securities exchange on which the
Warrants shall be listed, or to conform to customary usage. The Warrant
Certificates shall be in a format and in a form reasonably satisfactory to the
Warrant Agent.
Warrants may be issued initially in the form of one or more permanent
Global Warrants in registered form for an aggregate of 882,000 shares of Common
Stock, substantially in the form set forth in Exhibit A, deposited with the
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Warrant Agent, as custodian for the Depositary, and, if issued in the form of
one or more permanent Global Notes, shall bear the legend set forth on Exhibit
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B. The aggregate number of Warrants represented by any Global Warrant may from
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time to time be increased or decreased by adjustments made on the records of the
Warrant Agent, as custodian for the Depositary, as provided in this Agreement.
Pending the preparation of definitive Warrant Certificates, temporary
Warrant Certificates may be issued, which may be printed, lithographed,
typewritten, mimeographed or otherwise produced, and which will be substantially
of the tenor of the definitive Warrant Certificates in lieu of which they are
issued.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates to the Warrant Agent, without
charge to the Holder. Until so exchanged the temporary Warrant Certificates
shall in all respects be entitled to the same benefits under this Agreement as
definitive Warrant Certificates.
Section 2.02 Execution and Delivery of Warrant Certificates
Warrant Certificates evidencing Warrants to purchase initially an
aggregate of up to 882,000 shares of Common Stock shall be executed, on or after
the date of this Agreement, by the Company and delivered to the Warrant Agent
for countersignature, and the Warrant Agent shall countersign and deliver such
Warrant Certificates upon the order and at the direction of the Company to such
holders of Old Notes as so ordered and directed. The Warrant Agent is hereby
authorized to countersign and deliver Warrant Certificates as required by this
Section 2.02 or by Section 3.04, Article V or Section 9.04. The Warrant
Certificates shall be executed on behalf of the Company by its Chairman, Chief
Executive Officer or President or by any of its Vice Presidents, either manually
or by facsimile signature. The Warrant Certificates shall be authenticated by
manual signature of an authorized signatory of the Warrant Agent and shall not
be valid for any purpose unless so countersigned, and shall be dated the date of
authentication by the Warrant Agent. In case any officer of the Company whose
signature shall have been placed upon any of the Warrant Certificates shall
cease to be the Chairman, Chief Executive Officer, President or a Vice President
of the Company before countersignature by the Warrant Agent and
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issuance and delivery of the Warrant Certificates, such Warrant Certificates
may, nevertheless, be countersigned by the Warrant Agent and issued and
delivered with the same force and effect as though such person had not ceased to
be such officer of the Company.
ARTICLE III
NUMBER OF UNDERLYING SHARES; EXERCISE OF WARRANTS;
EXPIRATION; NON-SURVIVING COMBINATION
Section 3.01 Number of Underlying Shares
Each Warrant Certificate shall, when countersigned by the Warrant
Agent, entitle the Holder of the Warrant Certificate, subject to the provisions
of the Warrant Certificate, and of this Agreement, to receive one share of
Common Stock for each Warrant represented by the Warrant Certificate, subject to
adjustment as provided in this Agreement, upon payment of the Purchase Price for
each of such shares.
Section 3.02 Exercise of Warrants
Subject to the terms and conditions set forth in this Agreement, the
Warrants shall be exercisable at any time after their issuance and on or prior
to the Expiration Date.
Section 3.03 Expiration of Warrants
The Warrants shall terminate and become void as of the close of
business on the Expiration Date; provided that the Warrants will terminate and
become void prior to the Expiration Date in the event of a Non-Surviving
Combination, pursuant to Section 3.05.
The Company shall give notice not less than 90, and not more than 120,
days prior to the Expiration Date to the Holders of all then-outstanding
Warrants to the effect that the Warrants will terminate and become void as of
the close of business on the Expiration Date; provided that the failure by the
Company to give such notice as provided in this Section shall not affect such
termination and status of the Warrants as of the close of business on the
Expiration Date.
Section 3.04 Method of Exercise
In order to exercise a Warrant, the Holder must surrender the Warrant
Certificates evidencing such Warrant to the Warrant Agent, with one of the forms
on the reverse of or attached to the Warrant Certificate duly executed, and
tender the Purchase Price. The Purchase Price shall be payable by certified or
official bank check or wire transfer, payable in United States currency to the
order of the Company.
If fewer than all of the Warrants represented by a Warrant Certificate
are being exercised, such Warrant Certificate shall be surrendered and, subject
to the provisions of
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Article V, a new Warrant Certificate of the same tenor and for the number of
Warrants that were not exercised shall be executed by the Company. The Warrant
Agent shall countersign the new Warrant Certificate, register it in such name or
names as may be directed in writing by the Holder and deliver the new Warrant
Certificate to the Person or Persons entitled to receive the same.
Upon surrender of a Warrant Certificate and payment of the Purchase
Price in conformity with the foregoing provisions, the Warrant Agent shall
promptly notify the Company and deliver or cause to be delivered to the
exercising Holder appropriate evidence of ownership of any shares of Common
Stock or other securities or property (including any money) to which the Holder
is entitled, subject to the provisions of Section 9.02.
Section 3.05 Non-Surviving Combination
(a) If the Company proposes, prior to the Expiration Date, to enter
into a transaction that would constitute a Non-Surviving Combination if
consummated, the Company shall give written notice to the Warrant Agent and to
the Holders of Warrants, promptly after an agreement in principle is reached
with respect to the Non-Surviving Combination but in no event less than 30 days
prior to the consummation of the Non-Surviving Combination. Such notice shall
describe the transaction in reasonable detail and specify the consideration to
be received by the Holders. The Company shall also furnish to each Holder of
Warrants all notices and materials furnished to its stockholders in connection
with such transactions.
(b) The Company agrees that it will not enter into an agreement
providing for a Non-Surviving Combination, unless the party to such transaction
that is the surviving entity (the "Survivor") shall be obligated to distribute
or pay to each Holder of Warrants, upon payment of the Purchase Price prior to
the Expiration Date, the number of shares of stock or other securities or other
property (including any cash) of the Survivor that would have been distributable
or payable on account of the Common Stock issuable if such Holder's Warrants had
been exercised immediately prior to such Non-Surviving Combination (or, if
applicable, the record date for such transaction). Following the consummation
of a Non-Surviving Combination, the Warrants shall represent only the right to
receive such shares of stock or other property from the Survivor upon payment of
the Purchase Price prior to the Expiration Date.
Section 3.06 Use of Series 5 Convertible Preferred Stock for Exercise of
Warrants
Any Holder who is also a holder of the Company's Series 5 Redeemable
Cumulative Convertible Preferred Stock ("Series 5 Convertible Preferred Stock")
issued on the date of initial issuance of such Series 5 Convertible Preferred
Stock, may, at such Holder's option, use shares of Series 5 Convertible
Preferred Stock held by such Holder in lieu of cash to pay the exercise price to
acquire shares of Common Stock pursuant to the Warrants. For purposes of this
Section 3.06, each share of Series 5 Convertible Preferred Stock shall have a
value equal to the Liquidation Preference Per Share (as such term is defined in
the Company's Certificate of Designation relating to the Series 5 Convertible
Preferred Stock.)
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ARTICLE IV
ADJUSTMENTS
Section 4.01 Adjustments of Exercise Price and Number of Shares of Common Stock
The number and kind of shares purchasable upon the exercise of
Warrants and the Purchase Price shall be subject to adjustment from time to time
as follows:
(a) Changes in Common Stock. In the event the Company shall, at any
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time or from time to time, (i) issue any shares of Common Stock as a stock
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dividend to the holders of Common Stock, (ii) subdivide or combine the
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outstanding shares of Common Stock into a greater or lesser number of shares,
(iii) issue any shares of its capital stock in a reclassification or
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reorganization of the Common Stock, or (iv) issue any shares of Common Stock
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pursuant to the terms of the agreement by which the Company acquired ICT
Spectrum Constructors, Inc. (any such issuance, subdivision, combination,
reclassification or reorganization being called a "Change of Shares"), then (x)
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in the case of (i) or (ii) above, the number of shares of Common Stock that may
be purchased upon the exercise of each Warrant shall be adjusted to the number
of shares of Common Stock that the Holder of such Warrant would have owned or
have been entitled to receive after the happening of such event had such Warrant
been exercised immediately prior to the record date (or, if there is no record
date, the effective date) for such event, and the Purchase Price shall be
adjusted to the price (calculated to the nearest 1,000th of one cent) determined
by multiplying the Purchase Price immediately prior to such event by a fraction,
the numerator of which shall be the number of shares of Common Stock purchasable
with one Warrant immediately prior to such event and the denominator of which
shall be the number of shares of Common Stock purchasable with one Warrant after
the adjustment referred to above and (y), in the case of (iii) above, paragraph
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(l) below shall apply. An adjustment made pursuant to clause (x) of this
paragraph (a) shall become effective retroactively immediately after the record
date in the case of such dividend and shall become effective immediately after
the effective date in other cases, but any shares of Common Stock issuable
solely as a result of such adjustment shall not be issued prior to the effective
date of such event.
(b) Common Stock Distribution. In the event the Company shall, at any
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time or from time to time, issue, sell or otherwise distribute (including by way
of deemed distributions pursuant to paragraphs (c) and (d) below) any shares of
Common Stock (other than pursuant to a Change of Shares or the exercise of any
Option, Convertible Security (each as defined in paragraph (c) below) or
Warrant) (any such event, including any deemed distributions described in
paragraphs (c) and (d), being called a "Common Stock Distribution"), for a
consideration per share less than the current market price per share of Common
Stock (as defined in paragraph (f) below), on the date of such Common Stock
Distribution, then, effective upon such Common Stock Distribution, the Purchase
Price shall be reduced to the price (calculated to the nearest 1,000th of one
cent) determined by multiplying the Purchase Price in effect immediately prior
to such Common Stock Distribution by a fraction, the numerator of which shall be
the sum of (i) the number of shares of Common Stock outstanding (exclusive of
-
any treasury shares) immediately prior to such Common Stock Distribution
multiplied by the current market price per share of Common Stock on the date of
such Common Stock Distribution, plus (ii) the
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consideration, if any, received by the Company upon such Common Stock
Distribution, and the denominator of which shall be the product of (x) the total
-
number of shares of Common Stock outstanding (exclusive of any treasury shares)
immediately after such Common Stock Distribution and (y) the current market
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price per share of Common Stock on the date of such Common Stock Distribution.
If any Common Stock Distribution shall require an adjustment to the
Purchase Price pursuant to the foregoing provisions of this paragraph (b),
including by operation of paragraph (c) or (d) below, then, effective at the
time such adjustment is made, the number of shares of Common Stock purchasable
upon the exercise of each Warrant shall be increased to a number determined by
multiplying the number of such shares so purchasable immediately prior to such
Common Stock Distribution by a fraction, the numerator of which shall be the
Purchase Price in effect immediately prior to such adjustment and the
denominator of which shall be the Purchase Price in effect immediately after
such adjustment. In computing adjustments under this paragraph, fractional
interests in Common Stock shall be taken into account to the nearest 1,000th of
a share.
The provisions of this paragraph (b), including by operation of
paragraph (c) or (d) below, shall not operate to increase the Purchase Price or
reduce the number of shares of Common Stock purchasable upon the exercise of any
Warrant, except by operation of paragraph (j) or (k) below.
(c) Issuance of Options. In the event the Company shall, at any time
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or from time to time, issue, sell, distribute or otherwise grant in any manner
(including by assumption) any rights to subscribe for or to purchase, or any
warrants or options for the purchase of, Common Stock or any stock or securities
convertible into or exchangeable for Common Stock, other than the convertible
preferred stock issuable in the recapitalization concurrently with the issuance
of the Warrants as contemplated in the Registration Statement (any such rights,
warrants or options being called "Options" (the term "Options" shall also
include without limitation any rights ("Rights") to purchase Common Stock and
each other security for which such rights are at any time exercisable issued
pursuant to the Rights Agreement between the Company and the Rights Agent
designated in that Rights Agreement approved by the Board of Directors of the
Company on January 13, 1992, as amended from time to time) and any such
convertible or exchangeable stock or securities being called "Convertible
Securities"), whether or not such Options or the rights to convert or exchange
such Convertible Securities are immediately exercisable, and the price per share
at which Common Stock is issuable upon the exercise of such Options or upon the
conversion or exchange of such Convertible Securities (determined by dividing
(i) the aggregate amount, if any, received or receivable by the Company as
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consideration for the issuance, sale, distribution or granting of such Options,
plus the minimum aggregate amount of additional consideration, if any, payable
to the Company upon the exercise of all such Options, plus, in the case of
Options to acquire Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable upon the conversion or exchange of all
such Convertible Securities, by (ii) the total maximum number of shares of
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Common Stock issuable upon the exercise of all such Options or upon the
conversion or exchange of all Convertible Securities issuable upon the exercise
of all such Options) is less than the current market price per share of Common
Stock on the date of the issuance, sale,
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distribution or granting of such Options then, for purposes of paragraph (b)
above, the total maximum number of shares of Common Stock issuable upon the
exercise of all such Options or upon the conversion or exchange of the total
maximum amount of the Convertible Securities issuable upon the exercise of all
such Options shall be deemed to have been issued as of the date of the issuance,
sale, distribution or granting of such Options and shall be deemed to be
outstanding and the Company shall be deemed to have received as consideration
such price per share, determined as provided above. Except as otherwise provided
in paragraphs (j) and (k) below, no additional adjustment of the Purchase Price
shall be made upon the actual exercise of such Options or upon conversion or
exchange of the Convertible Securities issuable upon the exercise of such
options. If the minimum and maximum numbers or amounts referred to in this
paragraph (c) or in paragraph (d) below cannot be calculated with certainty as
of the date of the required adjustment, such numbers and amounts shall be
determined in good faith by the Board of Directors of the Company.
(d) Issuance of Convertible Securities. In the event the Company
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shall, at any time or from time to time, issue, sell or otherwise distribute
(including by assumption) any Convertible Securities (other than upon the
exercise of any Option), whether or not the rights to convert or exchange such
Convertible Securities are immediately exercisable, and the price per share at
which Common Stock is issuable upon the conversion or exchange of such
Convertible Securities (determined by dividing (i) the aggregate amount, if any,
-
received or receivable by the Company as consideration for the issuance, sale or
distribution of such Convertible Securities, plus the minimum aggregate amount
of additional consideration, if any, payable to the Company upon the conversion
or exchange of all such Convertible Securities, by (ii) the total maximum number
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of shares of Common Stock issuable upon the conversion or exchange of all such
Convertible Securities) is less than the current market price per share of
Common Stock on the date of such issuance, sale or distribution, then, for the
purposes of paragraph (b) above, the total number of shares of Common Stock
issuable upon the conversion or exchange of all such Convertible Securities
shall be deemed to have been issued as of the date of the issuance, sale or
distribution of such Convertible Securities and shall be deemed to be
outstanding and the Company shall be deemed to have received as consideration
such price per share, determined as provided above. Except as otherwise
provided in paragraphs (j) and (k) below, no additional adjustment of the
Purchase Price shall be made upon the actual conversion or exchange of such
Convertible Securities.
(e) Dividends and Distributions. In the event the Company shall, at
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any time or from time to time, distribute to the holders of Common Stock any
dividend or other distribution of cash, evidences of its indebtedness, other
securities or other properties or assets (in each case other than (i) dividends
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payable in Common Stock, Options or Convertible Securities and (ii) any cash
--
dividend that, when added to all other cash dividends paid in the one year prior
to the declaration date of such dividend (excluding any such other dividend
included in a previous adjustment of the Purchase Price pursuant to this
paragraph (e)), does not exceed 10% of the current market price per share of
Common Stock on such declaration date), or any options, warrants or other rights
to subscribe for or purchase any of the foregoing, then (x) the Purchase Price
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shall be decreased to a price determined by multiplying the Purchase Price then
in effect by a fraction, the numerator of which shall be the current market
price per share of Common Stock on the record date for such distribution less
the sum of (I) the cash portion, if
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any, of such distribution per share of Common Stock outstanding (exclusive of
any treasury shares) on the record date for such distribution plus (II) the then
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fair market value (as determined in good faith by the Board of Directors of the
Company) per share of Common Stock outstanding (exclusive of any treasury
shares) on the record date for such distribution of that portion, if any, of
such distribution consisting of evidences of indebtedness, other securities,
properties, assets, options, warrants or subscription or purchase rights, and
the denominator of which shall be such current market price per share of Common
Stock and (y) the number of shares of Common Stock purchasable upon the exercise
-
of each Warrant shall be increased to a number determined by multiplying the
number of shares of Common Stock so purchasable immediately prior to the record
date for such distribution by a fraction, the numerator of which shall be the
Purchase Price in effect immediately prior to the adjustment required by clause
(A) of this sentence and the denominator of which shall be the Purchase Price in
effect immediately after such adjustment. The adjustments required by this
paragraph (e) shall be made whenever any such distribution is made and shall be
retroactive to the record date for the determination of stockholders entitled to
receive such distribution.
(f) Current Market Price. For the purpose of any computation under
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paragraphs (b), (c), (d) and (e) of this Section, the current market price per
share of Common Stock at any date shall be the average of the daily closing
prices for the 20 consecutive trading days ending on the last full trading day
prior to the time and date as of which the current market price is to be
computed in connection with the event giving rise to the adjustment required by
paragraph (b), (c), (d) or (e). The closing price for any day shall be the last
reported sale price regular way or, in case no such reported sale takes place on
such day, the average of the closing bid and asked prices regular way for such
day, in each case (1) on the principal national securities exchange on which the
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shares of Common Stock are listed or to which such shares are admitted to
trading or (2) if the Common Stock is not listed or admitted to trading on a
-
national securities exchange, in the over-the-counter market as reported by the
Nasdaq Stock Market or any comparable system or (3) if the Common Stock is not
-
listed on the Nasdaq Stock Market or a comparable system, as furnished by two
members of the NASD selected from time to time in good faith by the Board of
Directors of the Company for that purpose. In the absence of all of the
foregoing, or if for any other reason the current market price per share cannot
be determined pursuant to the foregoing provisions of this paragraph (f), the
current market price per share shall be the fair market value as determined in
good faith by the Board of Directors of the Company.
(g) Certain Distributions. If the Company shall pay a dividend or
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make any other distribution payable in Options or Convertible Securities, then,
for purposes of paragraph (b) above (by operation of paragraph (c) or (d) above,
as the case may be) such Options or Convertible Securities shall be deemed to
have been issued or sold without consideration except for such amounts of
consideration as shall have been deemed to have been received by the Company
pursuant to paragraphs (c) or (d) above, as appropriate.
(h) Consideration Received. If any shares of Common Stock shall be
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issued and sold in an underwritten public offering, the consideration received
by the Company for such shares of Common Stock shall be deemed to include the
underwriting discounts and commissions realized by the underwriters of such
public offering. If any shares of Common Stock, Options or Convertible
Securities shall be issued, sold or distributed for a consideration
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other than cash, the amount of the consideration other than cash received by the
Company in respect shall be deemed to be the then fair market value of such
consideration (as determined in good faith by the Board of Directors of the
Company). If any Options shall be issued in connection with the issuance and
sale of other securities of the Company, together comprising one integral
transaction in which no specific consideration is allocated to such Options by
the parties thereto, such Options shall be deemed to have been issued, sold or
distributed for such amount of consideration as shall be allocated to such
Options in good faith by the Board of Directors of the Company.
(i) Deferral of Certain Adjustments. No adjustment to the Purchase
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Price (including the related adjustment to the number of shares of Common Stock
purchasable upon the exercise of each Warrant) shall be required under this
Agreement (i) unless such adjustment, together with other adjustments carried
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forward as provided below, would result in an increase or decrease of at least
one percent of the Purchase Price, provided that any adjustment which by reason
of this clause (i) of this paragraph (i) is not required to be made shall be
carried forward and taken into account in any subsequent adjustment and (ii)
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solely with respect to Options that are Rights, until the time such Options
become exercisable.
(j) Changes in Options and Convertible Securities. If the exercise
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price provided for in any Options referred to in paragraph (c) above, the
additional consideration, if any, payable upon the conversion or exchange of any
Convertible Securities referred to in paragraph (c) or (d) above, or the rate at
which any Convertible Securities referred to in paragraph (c) or (d) above are
convertible into or exchangeable for Common Stock shall change at any time
(other than under or by reason of provisions designed to protect against
dilution upon an event which results in a related adjustment pursuant to this
Article IV), the Purchase Price then in effect and the number of shares of
Common Stock purchasable upon the exercise of each Warrant shall be readjusted
(effective only with respect to any exercise of any Warrant after such
readjustment) to the Purchase Price and number of shares of Common Stock so
purchasable that would then be in effect had the adjustment made upon the
issuance, sale, distribution or granting of such Options or Convertible
Securities been made based upon such changed purchase price, additional
consideration or conversion rate, as the case may be, but only with respect to
such Options and Convertible Securities as then remain outstanding.
(k) Expiration of Options and Convertible Securities. If, at any time
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after any adjustment to the number of shares of Common Stock purchasable upon
the exercise of each Warrant shall have been made pursuant to paragraph (c), (d)
or (j) above or this paragraph (k), any Options or Convertible Securities shall
have expired unexercised or, solely with respect to Options that are Rights, are
redeemed, the number of such shares so purchasable shall, upon such expiration
or such redemption, be readjusted and shall become such as they would have been
had they been originally adjusted (or had the original adjustment not been
required, as the case may be) as if (i) the only shares of Common Stock deemed
to have been issued in connection with such Options or Convertible Securities
were the shares of Common Stock, if any, actually issued or sold upon the
exercise of such Options or Convertible Securities and (ii) such shares of
Common Stock, if any, were issued or sold 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, distribution or
granting of all such Options or Convertible
11
Securities, whether or not exercised; provided that (x) no such readjustment
-
shall have the effect of decreasing the number of such shares so purchasable by
an amount (calculated by adjusting such decrease to account for all other
adjustments made pursuant to this Article IV following the date of the original
adjustment referred to above) in excess of the amount of the adjustment
initially made in respect of the issuance, sale, distribution or granting of
such Options or Convertible Securities and (y) in the case of the redemption of
-
any Rights, there shall be deemed (for the purposes of paragraph (c) above) to
have been issued as of the date of such redemption for no consideration a number
of shares of Common Stock equal to the aggregate consideration paid to effect
such redemption divided by the current market price of the Common Stock on the
date of such redemption.
(l) Other Adjustments. In the event that at any time, as a result of
-----------------
an adjustment made pursuant to this Article IV, the Holders shall become
entitled to receive any securities of the Company other than shares of Common
Stock, the number of such other securities so receivable upon exercise of the
Warrants and the Purchase Price applicable to such exercise 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 shares of Common Stock
contained in this Article IV.
(m) Excluded Transactions. Notwithstanding any provision in this
---------------------
Article IV to the contrary, no adjustment shall be made pursuant to this Article
IV in respect of (i) any change in the par value of the Common Stock, (ii) the
- --
granting of any Options or the issuance of any shares of Common Stock, whether
pursuant to a Company stock option plan, employee stock purchase plan,
employment agreement, or otherwise, in any case, which would otherwise trigger
an adjustment under paragraph (b) above, that may be registered on Form S-8 or
any successor form under the Securities Act, to any officers, directors or
employees of, or any consultants or advisors to, the Company, or (iii) the
---
issuance of Common Stock pursuant to any dividend reinvestment plan; provided
that clause (ii) of this paragraph (m) shall not apply to any such grant or
issuance if, after giving effect to the grant or issuance, the aggregate amount
of Common Stock issued in all transactions covered by clause (ii) of this
paragraph (m) (assuming the exercise of all then outstanding Options granted in
such transactions) would exceed 5% of the number of shares of Common Stock then
outstanding (after giving effect to the exercise of the Options so granted and
all then outstanding Options or Convertible Securities).
Section 4.02 Notice of Adjustment
Whenever the number of shares of Common Stock or other stock or
property issuable upon the exercise of each Warrant is adjusted, as provided in
this Agreement, the Company shall promptly give a written certificate of the
Company to the Warrant Agent of such adjustment or adjustments and shall cause
the Warrant Agent promptly to mail by first-class mail, postage prepaid, to each
Holder notice of such adjustment or adjustments. In addition, the Company at
its sole expense shall within 120 calendar days following the end of each fiscal
year of the Company during which any Warrants remain outstanding, and promptly
upon the request of any Holder of a Warrant in connection with the exercise of
any of such Holder's Warrants, cause to be delivered to the Warrant Agent a
certificate of a firm of independent public accountants selected by the Board of
Directors of the Company (who may be the regular
12
accountants employed by the Company) setting forth the number of shares of
Common Stock or other stock or property issuable upon the exercise of each
Warrant after such adjustment, setting forth a brief statement of the facts
requiring such adjustment and setting forth the computation by which such
adjustment was made. The Warrant Agent shall be entitled to rely on such
certificates and shall be under no duty or responsibility with respect to any
such certificate except to exhibit the same from time to time to any Holder
desiring an inspection of the certificate during reasonable business hours. The
Warrant Agent shall not at any time be under any duty or responsibility to any
Holder to determine whether any facts exist that may require any adjustment of
the number of shares of Common Stock or other stock or property issuable on
exercise of the Warrants, or with respect to the nature or extent or any such
adjustment when made, or with respect to the method employed in making such
adjustment or the validity or value (or the kind or amount) of any shares of
Common Stock or other stock or property which may be issuable on exercise of the
Warrants. The Warrant Agent shall not be responsible for any failure of the
Company to make any cash payment or to issue, transfer or deliver any shares of
Common Stock or stock certificates or other common stock or property upon the
exercise of any Warrant.
Section 4.03 Statement of Warrants
Irrespective of any adjustment in the number or kind of shares
issuable upon the exercise of the Warrants, Warrants previously or subsequently
issued may continue to express the same number and kind of shares as are stated
in the Warrants initially issuable pursuant to this Agreement.
Section 4.04 Fractional Interest
The Company shall not be required to issue fractional shares of Common
Stock on the exercise of Warrants. If more than one Warrant shall be presented
for exercise in full at the same time by the same Holder, the number of full
shares of Common Stock which shall be issuable upon such exercise shall be
computed on the basis of the aggregate number of shares of Common Stock
acquirable on exercise of the Warrants so presented. If any fraction of a share
of Common Stock would, except for the provisions of this Section, be issuable on
the exercise of any Warrant (or specified portion of a Warrant), the Company
shall pay an amount in cash calculated by it to be equal to the then current
market price per share multiplied by such fraction computed to the nearest whole
cent. The Holders, by their acceptance of the Warrant Certificates, expressly
waive any and all rights to receive any fraction of a share of Common Stock or a
stock certificate representing a fraction of a share of Common Stock.
ARTICLE V
WARRANT TRANSFERS
Section 5.01 Warrant Transfer Books
The Warrant Certificates shall be issued in registered form only. The
Company shall cause to be kept at the office of the Warrant Agent a register in
which, subject to such
13
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Warrant Certificates and of transfers or exchanges of Warrant
Certificates by the Warrant Agent as provided in this Agreement.
At the option of the Holder, Warrant Certificates may be exchanged at
such office, upon payment of the charges provided in this Agreement. Whenever
any Warrant Certificates are so surrendered for exchange, the Company shall
execute, and the Warrant Agent shall countersign and deliver, the Warrant
Certificates that the Holder making the exchange is entitled to receive.
All Warrant Certificates issued upon any registration of transfer or
exchange of Warrant Certificates shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificates surrendered for such registration of
transfer or exchange.
Section 5.02 Registration of Transfer and Exchange
(a) Transfer and Exchange of Warrant Certificates. When Warrant
---------------------------------------------
Certificates are presented to the Warrant Agent with a request to register the
transfer of the Warrant Certificates, the Warrant Agent shall register the
transfer as requested if the requirements under this Agreement as set forth in
this Section 5.02 for such transaction are met; provided that the Warrant
Certificates presented or surrendered for registration of transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Warrant Agent, duly executed by the Holder or his
attorney duly authorized in writing.
(b) Restrictions on Exchange of a Warrant Certificates for a
--------------------------------------------------------
Beneficial Interest in a Global Warrant. A Warrant Certificate may not be
---------------------------------------
exchanged for a beneficial interest in a Global Warrant except upon satisfaction
of the requirements set forth below. Upon receipt by the Warrant Agent of a
Warrant Certificate, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Warrant Agent, together with written
instructions from the Company directing the Warrant Agent to make, or to direct
the Depositary to make, an endorsement on the Global Warrant to reflect an
increase in the aggregate number of Warrants represented by the Global Warrant,
then the Warrant Agent shall cancel such Warrant Certificate and cause, or
direct the Depositary to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Warrant Agent, the aggregate
number of Warrants represented by the Global Warrant to be increased
accordingly. If no Global Warrant is then outstanding, the Company shall issue
and the Warrant Agent shall authenticate such a Global Warrant for the
appropriate number of Warrants.
(c) Transfer and Exchange of Global Warrants. The transfer and
----------------------------------------
exchange of Global Warrants or beneficial interests in Global Warrants shall be
effected through the Depositary in accordance with this Agreement and the
applicable procedures of the Depositary.
14
(d) Transfer of a Beneficial Interest in a Global Warrant for a
-----------------------------------------------------------
Warrant Certificate.
-------------------
(i) Any Person having a beneficial interest in a Global Warrant
may upon request exchange such beneficial interest for a Warrant
Certificate. Upon receipt by the Warrant Agent of instructions from the
Depositary or its nominee on behalf of any Person having a beneficial
interest in a Global Warrant and upon receipt by the Warrant Agent of a
written order or such other form of instructions as is customary for the
Depositary or the Person designated by the Depositary as having such a
beneficial interest containing registration instructions, then the Warrant
Agent will cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Warrant Agent, the
aggregate number of Warrants represented by the Global Warrant to be
reduced and, following such reduction, the Company will execute and the
Warrant Agent will authenticate and deliver to the transferee a Warrant
Certificate.
(ii) Warrants issued in exchange for a beneficial interest in a
Global Warrant pursuant to this Section 5.02(d) shall be registered in such
names and in such denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Warrant Agent in writing. The Warrant Agent shall deliver such Warrant
Certificates to the Persons in whose names such Warrants are so registered.
(e) Restrictions on Transfer and Exchange of Global Warrants.
--------------------------------------------------------
Notwithstanding any other provisions of this Agreement, a Global Warrant may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) General. The Warrant Agent shall retain copies of all letters,
-------
notices and other written communications received pursuant to this Section 5.02.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Warrant Agent.
No service charge shall be payable by Holders for any registration of
transfer or exchange of Warrant Certificates. The Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Warrant
Certificates.
15
ARTICLE VI
WARRANT HOLDERS
Section 6.01 No Voting Rights
Prior to the exercise of the Warrants, no Holder of a Warrant, as
such, shall be entitled to any rights of a stockholder of the Company,
including, without limitation, the right to receive dividends or subscription
rights, the right to vote, to consent, to exercise any preemptive right, to
receive any notice of meetings of stockholders for the election of directors of
the Company or any other matter or to receive any notice of any proceedings of
the Company, except as may be specifically provided for in this Agreement.
Section 6.02 Right of Action
All rights of action in respect of this Agreement are vested in
the Holders of the Warrants, and any Holder of any Warrant, without the consent
of the Warrant Agent or any Holder of any other Warrant, may, on such Holder's
own behalf and for such Holder's own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, such Holder's rights under this Agreement, including
the right to exercise, exchange or surrender for purchase such Holder's Warrants
in the manner provided in this Agreement.
ARTICLE VII
WARRANT AGENT
Section 7.01 Nature of Duties and Responsibilities Assumed
The Company hereby appoints the Warrant Agent to act as agent of
the Company as set forth in this Agreement. The Warrant Agent hereby accepts the
appointment as agent of the Company and agrees to perform that agency upon the
terms and conditions set forth in this Agreement, by all of which the Company
and the Holders of Warrants, by their acceptance of this Agreement, shall be
bound. The Warrant Agent shall not by countersigning Warrant Certificates or by
any other act under this Agreement be deemed to make any representation as to
validity or authorization of the Warrants or the Warrant Certificates (except as
to its countersignature on the Warrant Certificates) or of any securities or
other property delivered upon exercise of any Warrant, or as to the number or
kind or amount of stock or other securities or other property deliverable upon
exercise of any Warrant or the correctness of the representations of the Company
made in such certificates that the Warrant Agent receives. The Warrant Agent
shall not have any duty to calculate or determine any adjustments with respect
to the kind and amount of shares or other securities or any property receivable
by Holders upon the exercise of Warrants required from time to time, and the
Warrant Agent shall have no duty or responsibility in determining the accuracy
or correctness of any such calculation, other than to apply any adjustment,
notice of which is given by the Company to the Warrant Agent to be
16
mailed to the Holders in accordance with Section 4.02. The Warrant Agent shall
not (a) be liable for any recital or statement of fact contained in this
-
Agreement or in the Warrant Certificates or for any action taken, suffered or
omitted by it in good faith in the belief that any Warrant Certificate or any
other document or any signature is genuine or properly authorized, (b) be
-
responsible for any failure on the part of the Company to comply with any of its
covenants and obligations contained in this Agreement or in the Warrant
Certificates or (c) be liable for any act or omission in connection with this
-
Agreement except for its own gross negligence or willful misconduct. The Warrant
Agent is hereby authorized to accept instructions with respect to the
performance of its duties under this Agreement from the Chief Executive Officer,
the President, any Vice President, the Chief Financial Officer, the Treasurer,
the Secretary or the Assistant Secretary of the Company and to apply to any such
officer for instructions (which instructions will be promptly given in writing
when requested), and the Warrant Agent shall not be liable for any action taken
or suffered to be taken by it in good faith in accordance with the instructions
of any such officer, except for its own gross negligence or willful misconduct,
but in its discretion the Warrant Agent may in lieu of such instructions accept
other evidence of such or may require such further or additional evidence as it
may deem reasonable. Any application by the Warrant Agent for written
instructions from the Company may, at the option of the Warrant Agent, set forth
in writing any action proposed to be taken or omitted by the Warrant Agent under
this Agreement and the date on and/or after which such action shall be taken or
such omission shall be effective. The Warrant Agent shall not be liable for any
action taken by, or omission of, the Warrant Agent in accordance with a proposal
included in such application on or after the date specified in such application
(which date shall not be less than three business days after the date any
officer of the Company actually receives such application, unless any such
officer shall have consented in writing to any earlier date) unless prior to
taking any such action (or the effective date in the case of an omission), the
Warrant Agent shall have received written instructions in response to such
application specifying the action to be taken or omitted.
The Warrant Agent may execute and exercise any of the rights and
powers vested in it under this Agreement or perform any duty under this
Agreement either itself or by or through its attorneys, agents or employees,
provided reasonable care has been exercised in the selection of any such
attorney, agent or employee. The Warrant Agent shall not be under any
obligation or duty to institute, appear in or defend any action, suit or legal
proceeding in respect of this Agreement, unless first indemnified to its
satisfaction, but this provision shall not affect the power of the Warrant Agent
to take such action as the Warrant Agent may consider proper, whether with or
without such indemnity. The Warrant Agent shall promptly notify the Company in
writing of any claim made or action, suit or proceeding instituted against or
arising out of or in connection with this Agreement. No provision of this
Agreement shall require the Warrant Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
under this Agreement or in the exercise of its rights if there shall be
reasonable grounds for believing that repayment of such funds or adequate
indemnification against such risk or liability is not reasonably assured to it.
The Company will perform, execute, acknowledge and deliver or cause to
be performed, executed, acknowledged and delivered all such further acts,
instruments and assurances as may reasonably be required by the Warrant Agent in
order to enable it to carry out or perform its duties under this Agreement.
17
The Warrant Agent shall act solely as agent of the Company under
this Agreement. The Warrant Agent shall not be liable except for the failure to
perform such duties as are specifically set forth in this Agreement, and no
implied covenants or obligations shall be read into this Agreement against the
Warrant Agent, whose duties and obligations shall be determined solely by the
express provisions of this Agreement.
Section 7.02 Right to Consult Counsel
The Warrant Agent may at any time consult with legal counsel of
its selection satisfactory to it (who may be legal counsel for the Company), and
the Warrant Agent shall incur no liability or responsibility to the Company or
to any Holder for any action taken, suffered or omitted by it in good faith in
accordance with the opinion or advice of such counsel.
Section 7.03 Compensation and Reimbursement; Indemnification
The Company agrees to pay to the Warrant Agent from time to time
compensation for all services rendered by it under this Agreement as the Company
and the Warrant Agent may agree from time to time in writing, and to reimburse
the Warrant Agent for reasonable expenses and disbursements incurred in
connection with the execution and administration of this Agreement (including
the reasonable compensation and the expenses of its counsel), and further agrees
to indemnify the Warrant Agent for, and to hold it harmless against, any and all
loss, liability, damage, claim or expense incurred without gross negligence, bad
faith or willful misconduct on its part, arising out of or in connection with
the acceptance and administration of this Agreement, including the costs and
expenses of defending itself against any such claim or liability in connection
with the exercise or performance of any of its powers or duties under this
Agreement. The provisions of this Section 7.03 shall survive the termination of
this Agreement.
Section 7.04 Warrant Agent May Hold Company Securities
Except as may be limited by applicable law, the Warrant Agent and
any stockholder, director, officer or employee of the Warrant Agent may buy,
sell or deal in any of the Warrants or other securities of the Company or its
Affiliates or become pecuniarily interested in transactions in which the Company
or its Affiliates may be interested, or contract with or lend money to the
Company or its Affiliates or otherwise act as fully and freely as though it were
not the Warrant Agent under this Agreement. Nothing in this Agreement shall
preclude the Warrant Agent from acting in any other capacity for the Company or
for any other person.
Section 7.05 Resignation and Removal; Appointment of Successor
(a) No resignation or removal of the Warrant Agent and no
appointment of a successor warrant agent shall become effective until the
acceptance of appointment by the successor warrant agent as provided in this
Agreement. The Warrant Agent may resign its duties and be discharged from all
further duties and liability under this Agreement (except liability arising as a
result of the Warrant Agent's own gross negligence, bad faith or willful
misconduct)
18
after giving written notice to the Company. The Company may remove the Warrant
Agent upon written notice, and the Warrant Agent shall in like manner be
discharged from all further duties and liabilities under this Agreement, except
as set forth above. The Warrant Agent shall, at the Company's expense, cause to
be mailed (by first-class mail, postage prepaid) to each Holder of a Warrant at
its last address as shown on the register of the Company maintained by the
Warrant Agent a copy of said notice of resignation or notice of removal, as the
case may be. Upon such resignation or removal, the Company shall appoint in
writing a new warrant agent. If the Company shall fail to make such appointment
within a period of 30 days after it has been notified in writing of such
resignation by the resigning Warrant Agent or after such removal, then the
Company shall become Warrant Agent until a successor Warrant Agent has been
appointed, and the Holder of any Warrant may apply to any court of competent
jurisdiction for the appointment of a new warrant agent. Any new warrant agent,
whether appointed by the Company or by such a court, shall be a corporation
doing business under the laws of the United States, any state of the United
States, or the District of Columbia, in good standing and having a combined
capital and surplus of not less than $50,000,000. The combined capital and
surplus of any such new warrant agent shall be deemed to be the combined capital
and surplus as set forth in the most recent annual report of its condition
published by such warrant agent prior to its appointment, provided that such
reports are published at least annually pursuant to law or to the requirements
of a federal or state supervising or examining authority. After acceptance in
writing of such appointment by the new warrant agent, it shall be vested with
the same powers, rights, duties and responsibilities as if it had been
originally named as the Warrant Agent, without any further assurance,
conveyance, act or deed; but if for any reason it shall be necessary or
expedient to execute and deliver any further assurance, conveyance, act or deed,
the same shall be done at the expense of the Company and shall be legally and
validly executed and delivered by the resigning or removed Warrant Agent. Not
later than the effective date of any such appointment, the Company shall give
notice of the appointment to the resigning or removed Warrant Agent. Failure to
give any notice provided for in this Section, however, or any defect in such
notice, shall not affect the legality or validity of the resignation or removal
of the Warrant Agent or the appointment of a new warrant agent, as the case may
be.
(b) Any corporation into which the Warrant Agent or any new warrant
agent may be merged or any corporation resulting from any consolidation to which
the Warrant Agent or any new warrant agent shall be a party or any person to
whom the Warrant Agent transfers substantially all of its corporate trust
business shall be a successor Warrant Agent under this Agreement without any
further act, provided that such corporation (i) would be eligible for
-
appointment as successor to the Warrant Agent under the provisions of Section
7.05(a) or (ii) is a wholly-owned subsidiary of the Warrant Agent. Any such
--
successor Warrant Agent shall promptly cause notice of its succession as Warrant
Agent to be mailed (by first class mail, postage prepaid) to each Holder at such
Holder's last address as shown on the register maintained by the Warrant Agent
pursuant to Section 5.01.
19
ARTICLE VIII
COVENANTS OF THE COMPANY
Section 8.01 Reservation of Common Stock for Issuance on Exercise of Warrants;
Listing
The Company will at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued Common Stock, solely
for the purpose of issuance upon exercise of Warrants as provided in this
Agreement, such number of shares of Common Stock as shall then be issuable upon
the exercise of all outstanding Warrants. The Company covenants that all shares
of Common Stock which shall be so issuable shall, upon such issuance, be duly
and validly issued and fully paid and nonassessable, and that upon issuance such
shares shall be listed on each national securities exchange or quotation system
(including the Nasdaq Stock Market), if any, on which any other shares of
outstanding Common Stock of the Company are then listed.
The Company or the transfer agent for the Common Stock (the
"Transfer Agent") and every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of any of the Warrants as
provided in this Agreement will be irrevocably authorized and directed at all
times to reserve such number of authorized shares as shall be required for such
purpose. The Company will keep a copy of this Agreement on file with the
Transfer Agent and with every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of the rights of purchase
represented by the Warrants. The Warrant Agent is hereby irrevocably authorized
to requisition from time to time from such Transfer Agent the stock certificates
required to honor outstanding Warrants upon exercise in accordance with the
terms of this Agreement. The Company will supply such Transfer Agent with duly
executed certificates for such purposes and will provide or otherwise make
available any cash that may be payable as provided in Section 4.04. The Company
will furnish such Transfer Agent a copy of all notices of adjustment and related
certificates transmitted to each holder pursuant to Section 4.02.
Section 8.02 Agreements Respecting Warrants
The Company agrees that it will not enter into any agreement or
instrument which would preclude the exercise of the Warrants for shares of
Common Stock.
Section 8.03 Registration under Federal Securities Laws
The Company has registered under the Securities Act all of the
Warrants and the Common Stock issuable upon exercise of the Warrants. The
Company shall use all reasonable efforts to maintain such effectiveness
continually until the close of business on the Expiration Date or such other
date on which the Warrants terminate and become void prior to the Expiration
Date.
20
ARTICLE IX
MISCELLANEOUS
Section 9.01 Money and Other Property Deposited with the Warrant Agent
Any money, securities or other property which at any time shall be
deposited by the Company or on its behalf with the Warrant Agent pursuant to
this Agreement shall be assigned, transferred and set over to the Warrant Agent
in trust for the purpose for which such moneys, securities or other property
shall have been deposited; but such moneys, securities or other property need
not be segregated from other funds, securities or other property of the Warrant
Agent except to the extent required by law. The Warrant Agent shall distribute
any money deposited with it for payment and distribution to any Holder by
mailing by first-class mail a check in such amount as is appropriate, to such
Holder at the address shown on the Warrant register maintained pursuant to
Section 5.01, or as it may be otherwise directed in writing by such Holder, upon
surrender of such Holder's Warrants. Any money or other property deposited with
the Warrant Agent for payment and distribution to any Holder that remains
unclaimed for two years, less one day, after the date the money was deposited
with the Warrant Agent shall be paid to the Company upon its request.
Section 9.02 Payment of Taxes
The Company will pay all taxes and other governmental charges that
may be imposed on the Company or the Warrant Agent in respect of any issuance or
delivery of Common Stock upon the exercise of Warrants. The Company will not be
required, however, to pay any tax or other charge imposed in connection with any
transfer involved in the issue of any certificate for shares of Common Stock or
other securities underlying the Warrants or payment of cash or other property to
any person other than the Holder of a Warrant Certificate surrendered upon the
exercise of Warrants, and in case of such transfer or payment, the Warrant Agent
and the Company shall not be required to issue any stock certificate or security
or pay any cash or distribute any property until such tax or charge has been
paid or it has been established to the Warrant Agent's and the Company's
satisfaction that no such tax or other charge is due.
Section 9.03 Surrender of Certificates
Any Warrant Certificate surrendered for exercise or purchased or
otherwise acquired by the Company shall, if surrendered to the Company, be
delivered to the Warrant Agent, and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall promptly be canceled by such Warrant Agent
and shall not be reissued by the Company. The Warrant Agent shall return such
canceled Warrant Certificates to the Company.
Section 9.04 Mutilated, Destroyed, Lost and Stolen Warrant Certificates
If (a) any mutilated Warrant Certificate is surrendered to the
-
Warrant Agent or (b) the Company and the Warrant Agent receive evidence to their
-
satisfaction of the destruction, loss or theft of any Warrant Certificate, and
there is delivered to the Company and the Warrant
21
Agent such security or indemnity as may be reasonably required by them to save
each of them harmless, then, in the absence of notice to the Company or any
officer in the corporate trust department of the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute and upon its written request the Warrant Agent shall countersign and
deliver, in exchange for any such mutilated Warrant Certificate or in lieu of
any such destroyed, lost or stolen Warrant Certificate, a new Warrant
Certificate of like tenor and for a like aggregate number of warrants.
Upon the issuance of any new Warrant Certificate under this
Section 9.04, the Company may require the payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation to such issuance and other expenses (including the reasonable fees and
expenses of the Warrant Agent) in connection with such issuance.
Every new Warrant Certificate executed and delivered pursuant to
this Section 9.04 in lieu of any destroyed, lost or stolen Warrant Certificate
shall constitute an original contractual obligation of the Company, whether or
not the destroyed, lost or stolen Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of this Agreement
equally and proportionately with any and all other Warrant Certificates duly
executed and delivered under this Agreement.
The provisions of this Section 9.04 are exclusive and shall
preclude (to the extent lawful) all other rights or remedies with respect to the
replacement of mutilated, destroyed, lost or stolen Warrant Certificates.
Section 9.05 Notice
Any notice or communication by the Company or the Warrant Agent to
the other is duly given if in writing and delivered in person, mailed by first-
class mail (registered or certified, return receipt requested), or sent by
telecopier or overnight air courier guaranteeing next day delivery, to the
other's address:
If to the Company:
ICF Xxxxxx International, Inc.
0000 Xxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: President and Chief Executive Officer
cc: Chief Financial Officer
If to the Warrant Agent:
[ ]
Attention:
22
The Company or the Warrant Agent by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
All distributions and notices to Holders required by this
Agreement to be given or made by the Company shall be addressed to the Holders
at their last known addresses as they shall appear on the registration books
maintained by the Warrant Agent.
All notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and the next business day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first-
class mail to the Holder's address shown on the register of the Company
maintained by the Warrant Agent. Failure to mail a notice or communication to a
Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Warrant Agent at the same time.
Section 9.06 Persons Benefiting
This Agreement shall be binding upon and inure to the benefit of
the Company and the Warrant Agent, and their respective successors and assigns.
Nothing in this Agreement is intended or shall be construed to confer upon any
person, other than the Company, the Warrant Agent and the Holders, any right,
remedy or claim under or by reason of this or any part of this Agreement.
Section 9.07 Counterpart Originals
The parties may sign any number of copies of this Agreement. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 9.08 Amendments
The Company may, without the consent of the Holders of the
Warrants, by supplemental agreement or otherwise, make any changes or
corrections in this Agreement (a) to cure any ambiguity or correct or supplement
-
any provision in this Agreement which may be defective or inconsistent with any
other provision in this Agreement or to correct any clerical omission or mistake
or manifest error contained in this Agreement, (b) to add to the covenants and
-
agreements of the Company for the benefit of the Holders, or surrender any
rights or power reserved to or conferred upon the Company in this Agreement, or
(c) that do not adversely affect
-
23
the interests of the Holders in any material respect. The Warrant Agent shall
join with the Company in the execution and delivery of any such supplemental
agreements unless it affects the Warrant Agent's own rights, duties or
immunities under this Agreement, in which case such party may, but shall not be
required to, join in such execution and delivery. Prior to executing any such
supplemental agreement, the Warrant Agent shall be entitled to receive and shall
be protected in relying upon a certificate of the Company which states that the
proposed supplemental agreement is in compliance with the terms of this Section
9.08.
Section 9.09 Termination
This Agreement (other than the Company's obligations with respect
to Warrants previously exercised under Article III, and with respect to
compensation, reimbursement and indemnification under Section 7.03) shall
terminate and be of no further force and effect, provided the Company has
complied with Section 3.05 in the case of a Non-Surviving Combination, on the
earlier of (a) the Expiration Date and (b) the consummation of a Non-Surviving
Combination.
Section 9.10 Governing Law
THIS AGREEMENT AND EACH WARRANT ISSUED UNDER THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
__________________, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Section 9.11 Headings
The headings of the Articles and Sections of this Agreement have
been inserted for convenience of reference only, are not to be considered a part
of this Agreement and shall in no way modify or restrict any of the terms or
provisions of this Agreement.
[Remainder of page intentionally blank.]
24
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed, as of the day and year first above written.
ICF XXXXXX INTERNATIONAL, INC.
By:_______________________________
Name:
Title:
_________________________________,
as Warrant Agent
By:______________________________
Name:
Title:
EXHIBIT A
No._______________ Certificate for ________ Warrants
CUSIP No. ________________
[Form of Warrant Certificate]
VOID (UNLESS EXTENDED AFTER 5:00 P.M.
[CITY, STATE OF WARRANT AGENT TIME], DECEMBER 31, 2004
WARRANTS TO ACQUIRE COMMON STOCK OF
ICF XXXXXX INTERNATIONAL, INC.
This certifies that ___________________________________, or registered
assigns, is the registered holder of the number of Warrants set forth above (the
"Warrants"). Each Warrant entitles the holder (the "Holder"), subject to the
provisions contained in this Warrant Certificate and in the Warrant Agreement
referred to below, to acquire from ICF Xxxxxx International, Inc., a Delaware
corporation (the "Company"), one share of Common Stock, $0.01 par value per
share, of the Company (the "Common Stock") for consideration equal to the
Purchase Price (as defined in the Warrant Agreement) per share of Common Stock.
The Warrants evidenced by this Warrant Certificate shall not be exercisable
after and shall terminate and become void as of the close of business on
December 31, 2004 (the "Expiration Date") or as of the closing of any Non-
Surviving Combination, if earlier.
This Warrant Certificate is issued under and in accordance with a Warrant
Agreement dated as of _________ __, 1999 (the "Warrant Agreement"), between the
Company and _________________, as warrant agent (the "Warrant Agent", which term
includes any successor Warrant Agent under the Warrant Agreement), and is
subject to the terms and provisions contained in the Warrant Agreement, to all
of which terms and provisions the Holder of this Warrant Certificate consents by
acceptance of this Warrant Certificate. The Warrant Agreement is incorporated
in this Warrant Certificate by reference and made a part of this Warrant
Certificate. Reference is hereby made to the Warrant Agreement for a full
statement of the respective rights, limitations of rights, duties and
obligations of the Company, the Warrant Agent and the Holders of the Warrants.
Capitalized terms not defined in this Warrant Certificate have the meanings
ascribed to them in the Warrant Agreement. A copy of the Warrant Agreement may
be obtained for inspection by the Holder of this Warrant Certificate upon
written request to the Company at 0000 Xxx Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000-
1207, Attention: ________________________.
As provided in the Warrant Agreement and subject to the terms and
conditions set forth in the Warrant Agreement, the Warrants are immediately
exercisable.
A-1
If the Company proposes, prior to the Expiration Date, to enter into a
merger, consolidation, sale of assets or other business combination with one or
more persons (other than a wholly-owned subsidiary of the Company) in which
consideration (other than Common Equity Securities) is distributed to the
holders of Common Stock in exchange for all or substantially all of their equity
interest in the Company (a "Non-Surviving Combination"), the Company shall give
written notice to the Holders promptly after an agreement is reached but in no
event less than 30 days prior to the closing of any such transaction. In the
event the Company enters into a Non-Surviving Combination, upon payment of the
Purchase Price prior to the Expiration Date, the Holder of this Warrant
Certificate will be entitled to receive the shares of stock or other securities
or other property (including any money) of the surviving entity in such Non-
Surviving Combination as the Holder would have received had the Holder exercised
its Warrants immediately prior to such Non-Surviving Combination (or, if
applicable, the record date for that transaction).
In order to exercise a Warrant, the registered Holder of this Warrant
Certificate must surrender this Warrant Certificate at the office of the Warrant
Agent, with the Exercise Subscription Form on the reverse side duly executed by
the Holder of this Warrant Certificate, with signature guaranteed as specified,
and tender the Purchase Price therefor.
ICF XXXXXX INTERNATIONAL, INC.
By:_____________________________
Name:
Title:
DATED:
Countersigned:
_________________,
as Warrant Agent
By:_____________________________
Authorized Signatory
Date of Countersignature:
A-2
[FORM OF REVERSE OF WARRANT CERTIFICATE]
ICF XXXXXX INTERNATIONAL, INC.
------------------------------
This Warrant Certificate and all rights under this Warrant Certificate are
transferable by the registered Holder of this Warrant Certificate, in whole or
in part, on the register maintained by the Warrant Agent, upon surrender of this
Warrant Certificate for registration of transfer at the office of the Warrant
Agent maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Warrant Agent
duly executed by, the registered Holder of this Warrant Certificate or its
attorney duly authorized in writing, with signature guaranteed as specified in
the attached Form of Transfer. Upon any partial transfer, the Company will
issue and deliver to such Holder a new Warrant Certificate or Certificates with
respect to any portion not so transferred. No service charge shall be made for
any registration of transfer or exchange of Warrant Certificates, but the
Company may require payment by the Holder of a sum sufficient to cover any tax
or other governmental charge payable in connection with any partial transfer.
All shares of Common Stock issuable by the Company upon the exercise of the
Warrants shall, upon such issue, be duly and validly issued and fully paid and
nonassessable, and upon issuance such shares shall be listed on each national
securities exchange or quotation system (including the Nasdaq Stock Market), if
any, on which any other shares of outstanding Common Stock are then listed.
Each taker and holder of this Warrant Certificate, by taking or holding the
same, consents and agrees that the holder of this Warrant Certificate when duly
endorsed in blank may be treated by the Company, the Warrant Agent and all other
persons dealing with this Warrant Certificate as the absolute owner of the
related Warrants for any purpose and as the person entitled to exercise the
rights represented by this Warrant Certificate, or to the transfer of such
Warrants on the register of the Company maintained by the Warrant Agent, any
notice to the contrary notwithstanding, but until such transfer on such
register, the Company and the Warrant Agent may treat the registered Holder of
such Warrants as the owner for all purposes.
The number of shares of Common Stock issuable upon exercise of the Warrants
is subject to adjustment in certain events, including (i) stock dividends, stock
-
splits and reclassification affecting the Common Stock, (ii) the issuance of
--
certain rights, warrants or options, or convertible or exchangeable securities,
to the holders of Common Stock entitling them to acquire Common Stock at a price
per share lower than its then market value and (iii) sales by the Company of
---
Common Stock at a price per share lower than its then market value.
The Warrants do not entitle any Holder to any of the rights of a
stockholder of the Company.
This Warrant Certificate and the Warrant Agreement are subject to amendment
as provided in the Warrant Agreement.
A-3
This Warrant Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by an authorized signatory of the Warrant
Agent.
This Warrant Certificate and all rights under this Warrant Certificate
shall be governed by and construed in accordance with the laws of the State of
______________, without regard to principles of conflicts of laws.
A-4
EXERCISE SUBSCRIPTION FORM
(to be executed only upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise
__________________________ of the Warrants represented by this Warrant
Certificate, for the acquisition of one share each of Common Stock, $0.01 par
value per share, of ICF Xxxxxx International, Inc., on the terms and conditions
specified in this Warrant Certificate and the Warrant Agreement referred to in
this Warrant Certificate, surrenders this Warrant Certificate and all right,
title and interest in it to ICF Xxxxxx International, Inc. and directs that the
shares of Common Stock deliverable upon the exercise of such Warrants be
registered or placed in the name and at the address specified below and
delivered to such address.
Date: ________________, ____.
/1/
-
-------------------------
(Signature of Owner)
_____________________________
(Name Printed in Full)
_____________________________
(Xxxxxx Xxxxxxx)
_____________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
_____________________________
_____________________________
/1/ The signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatsoever, and must be guaranteed.
A-5
FORM OF TRANSFER
FOR VALUE RECEIVED the undersigned registered Holder of this Warrant
Certificate hereby sells, assigns and transfers unto the Assignee(s) named below
(including the undersigned with respect to any Warrants constituting a part of
the Warrants evidenced by this Warrant Certificate not being assigned) all of
the right of the undersigned under this Warrant Certificate, with respect to the
number of Warrants set forth below:
-------------------------------------------------------------------------
Social Security
or other
identifying
Name of number of Number of
Assignee(s) Address assignee(s) warrants
-------------------------------------------------------------------------
-------------------------------------------------------------------------
and does hereby irrevocably constitute and appoint the Warrant Agent as the
undersigned's attorney to make such transfer on the register maintained by the
Warrant Agent for that purpose, with full power of substitution in the premises.
Date:____________, ____
/2/
-
------------------------------
(Signature of Owner)
_____________________________
(Xxxxxx Xxxxxxx)
_____________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
_____________________________
_____________________________
/2/ The signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatsoever, and must be guaranteed.
A-6
EXHIBIT B
FORM OF LEGEND FOR GLOBAL WARRANTS
Any Global Warrant authenticated and delivered under the Warrant Agreement
shall bear a legend in substantially the following form:
THIS WARRANT IS A GLOBAL WARRANT WITHIN THE MEANING OF
THE WARRANT AGREEMENT HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS WARRANT IS NOT
EXCHANGEABLE FOR WARRANTS REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT AS DESCRIBED
IN THE WARRANT AGREEMENT, AND NO TRANSFER OF THIS WARRANT
(OTHER THAN A TRANSFER OF THIS WARRANT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT AS DESCRIBED IN THE
WARRANT AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER OR EXCHANGE, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
B-1