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EXHIBIT 99.11
▇▇▇▇ INTERNATIONAL CORP.,
AS ISSUER
AND
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
AS WARRANT AGENT
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WARRANT AGREEMENT
DATED AS OF AUGUST 20, 1999
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TABLE OF CONTENTS*
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Page
PARTIES........................................................................................................ 1
RECITALS....................................................................................................... 1
SECTION 1. Appointment of Warrant Agent................................................................. 2
SECTION 2. Form of Warrant Certificates................................................................. 1
SECTION 3. Execution of Warrant Certificates............................................................ 1
SECTION 4. Registration and Countersignature............................................................ 2
SECTION 5. Registration of Transfers and Exchanges...................................................... 2
SECTION 6. Duration and Exercise of Warrants and Residual Value......................................... 2
SECTION 7. Payment of Taxes............................................................................. 3
SECTION 8. Mutilated or Missing Warrant Certificates.................................................... 3
SECTION 9. Reservation of Shares........................................................................ 3
SECTION 10. Obtaining of Governmental Approvals.......................................................... 4
SECTION 11. Adjustment of Exercise Price and Number of Shares Purchasable or Number of Warrants.......... 4
SECTION 12. Fractional Warrants and Fractional Shares.................................................... 6
SECTION 13. Notice to Warrant Holders.................................................................... 6
SECTION 14. Merger, Consolidation or Change of Name of Warrant Agent..................................... 6
SECTION 15. Warrant Agent............................................................................... 7
SECTION 16. Disposition of Proceeds of Exercise of Warrants.............................................. 9
SECTION 17. Change of Warrant Agent...................................................................... 9
SECTION 18. Notices to Company and Warrant Agent......................................................... 9
SECTION 19. Supplements and Amendments................................................................... 10
SECTION 20. Successors................................................................................... 10
SECTION 21. Termination.................................................................................. 10
SECTION 22. Governing Law................................................................................ 10
SECTION 23. Benefits of This Agreement................................................................... 10
SECTION 24. Counterparts................................................................................. 11
SECTION 25. Definitions.................................................................................. 11
TESTIMONIUM.................................................................................................... 11
SIGNATURES AND SEALS........................................................................................... 11
EXHIBIT "A".................................................................................................... 12
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* This table of Contents does not constitute a part of this Agreement or
have any bearing upon the interpretation of any of its terms or provisions.
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WARRANT AGREEMENT dated as of August 20, 1999, between ▇▇▇▇
INTERNATIONAL CORP., an Ohio corporation (the "Company"), and ▇▇▇▇▇▇ TRUST AND
SAVINGS BANK, an Illinois banking corporation, as Warrant Agent (the "Warrant
Agent").
WHEREAS, the Company proposes to issue and distribute up to 625,000
warrants (the "Warrants") entitling the holders to purchase a maximum aggregate
of 625,000 shares of its Common Stock, without par value (such 625,000 shares
being hereinafter referred to as the "Shares" and where appropriate such term
shall also mean the other securities or property purchasable upon the exercise
of a Warrant as provided for herein upon the happening of certain events; and
such Common Stock being hereinafter referred to as the "Common Stock") and the
certificates evidencing the Warrants being hereinafter referred to as "Warrant
Certificates"); 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, registration, transfer, exchange, replacement and exercise of Warrant
Certificates and other matters as provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
instructions set forth hereinafter in this Agreement, and the Warrant Agent
hereby accepts such appointment.
SECTION 2. Form of Warrant Certificates. The Warrant Certificates to be
delivered pursuant to this Agreement shall be in registered form only and shall
be substantially in the form set forth in Exhibit A attached hereto.
SECTION 3. Execution of Warrant Certificates. Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board, Chief
Executive Officer, President, a Senior Vice President or a Vice President and by
its Secretary or an Assistant Secretary under its corporate seal. Each such
signature upon the Warrant Certificates may be in the form of a facsimile
signature of the present or any future Chairman of the Board, Chief Executive
Officer, President, Senior Vice President, Vice President, Secretary or
Assistant Secretary and may be imprinted or otherwise reproduced on the Warrant
Certificates and for that purpose the Company may adopt and use the facsimile
signature of any person who shall have been Chairman of the Board, Chief
Executive Officer, President, a Senior Vice President, a Vice President,
Secretary or an Assistant Secretary, notwithstanding the fact that at the time
the Warrant Certificates shall be countersigned and delivered or disposed of he
shall have ceased to hold such office. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
In case any officer of the Company who shall have signed any of the
Warrant Certificates shall cease to be such officer before the Warrant
certificates so signed shall have been countersigned by the Warrant Agent, or
disposed of by the Company, such Warrant Certificates nevertheless may be
countersigned and delivered or disposed of as though such person had not ceased
to be such officer of the Company; and any Warrant Certificate may be signed on
behalf of the Company by any person who, at the actual date of the execution of
such Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date of the execution of this Warrant
Agreement any such person was not such officer.
In connection with the initial issuance of the Warrant Certificates,
upon receipt of Warrant Certificates executed by the Company and a written order
of the Company executed by its Chairman of the Board, Chief Executive Officer,
President, a Senior Vice President or a Vice President and by its Secretary or
an Assistant Secretary, the Warrant Agent will countersign and deliver Warrant
Certificates in accordance with the instructions contained in such order.
Warrant Certificates shall be dated the date of countersignature by the
Warrant Agent.
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SECTION 4. Registration and Countersignature. Warrant Certificates
distributed as provided in Section 12 shall be registered in the name of the
record holders of the Warrant Certificates to whom they are to be distributed.
Warrant Certificates shall be manually countersigned by the Warrant
Agent and shall not be valid for any purpose unless so countersigned.
The Company and the Warrant Agent may deem and treat the registered
holder of a Warrant Certificate as the absolute owner thereof (notwithstanding
any notation of ownership of other writing thereon made by anyone), for the
purpose of any exercise or conversion thereof and any distribution to the holder
thereof and for all other purposes, and neither the Company nor the Warrant
Agent shall be affected by any notice to the contrary.
SECTION 5. Registration of Transfers and Exchanges. The Warrant Agent
shall from time to time register the transfer of any outstanding Warrant
Certificates upon the records to be maintained by it for that purpose, upon
surrender thereof accompanied (if so required by it) by a written instrument or
instruments of transfer in form satisfactory to the Warrant Agent duly executed
by the registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney. Upon any such
registration of transfer, a new Warrant Certificate shall be issued to the
transferee and the surrendered Warrant Certificate shall be canceled by the
Warrant Agent. Canceled Warrant Certificates shall thereafter be disposed of in
a manner satisfactory to the Company.
Warrant Certificates may be exchanged at the option of the holders
thereof, when surrendered to the Warrant Agent at its office maintained for the
purpose of exchanging, transferring and exercising the Warrants in the Atlanta,
Georgia (the "Warrant Agent Office"), for another Warrant Certificate or other
Warrant Certificates of like tenor and representing in the aggregate a like
number of Warrants. Warrant Certificates surrendered for exchange, transfer and
exercise shall be canceled by the Warrant Agent. Such canceled Warrant
Certificates shall then be disposed of by the Warrant Agent in a manner
satisfactory to the Company.
The Warrant Agent is hereby authorized to countersign, in accordance
with the provisions of this Section 5 and of Section 4, and deliver the new
Warrant Certificates required pursuant to the provisions of this Section, and
for the purpose of any distribution of Warrant Certificates contemplated by
Section 12.
SECTION 6. Duration and Exercise of Warrants and Residual Value. The
Warrants shall expire on September 30, 2002 (such date of termination being
herein referred to as the "Termination Date"). Each Warrant may be exercised on
or after October 1, 2000 (on any business day prior to the close of business on
the Termination Date), but only if a registration statement covering the shares
issuable upon exercise of the Warrant has been declared effective by the
Securities and Exchange Commission ("SEC") and is effective at the time of
exercise. The Company shall file with the SEC a registration statement covering
the Shares issuable upon exercise of the Warrants as promptly as practicable
after July 15, 2000 at any time the Closing Price per Share exceeds $3.50 for 10
consecutive trading days (unless a registration statement covering such Shares
is then effective). The Company is obligated during the term of the Warrants to
endeavor to maintain the effectiveness of such registration statement the
greater of (i) 90 days or (ii) consecutive 60 day periods after the date the
registration statement covering such Common Stock is first declared effective by
the SEC, so long as the Closing Price of the Common Stock continues to be above
$3.50 per share for at least 10 consecutive trading days during each such
period. The Company reserves the right to reduce the exercise price of the
Warrants, on thirty days' notice, for a minimum of thirty days.
Subject to the provisions of this Agreement, when this Warrant is
exercisable as set forth above the holder of each Warrant shall have the right
to purchase from the Company (and the Company shall issue and sell to such
holder) one fully paid and non-assessable Share at the initial exercise price
(the "Exercise Price") of $3.875 upon the surrender on any business day prior to
the close of business (6:00 p.m. New York time) on the Termination Date to the
Warrant Agent at the Warrant Agent Office of the Warrant Certificate evidencing
such Warrant, with the form of election to purchase on the reverse thereof duly
filled in and signed, and upon payment of the Exercise Price in lawful money of
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the United States of America. Exercisable Warrants evidenced by a Warrant
Certificate shall be exercisable prior to the close of business on the
Termination Date, at the election of the registered holder thereof, either as an
entirety or from time to time for part of the number of Warrants specified in
the Warrant Certificate. In the event that less than all of the Warrants
evidenced by a Warrant Certificate surrendered upon the exercise of Warrants are
exercised at any time prior to the close of business on the Termination Date, a
new Warrant Certificate or Certificates will be issued for the remaining number
of Warrants evidenced by the Warrant Certificate so surrendered. No adjustments
shall be made for any cash dividends on Shares issuable on the exercise of a
Warrant.
Subject to Section 7, upon such surrender of a Warrant Certificate and
payment of the Exercise Price, the Warrant Agent shall requisition from the
transfer agent for the Shares for issuance and delivery to or upon the written
order of the registered holder of such Warrant Certificate and in such name or
names as such registered holder may designate, a certificate for the Share or
Shares issuable upon the exercise of the Warrant or Warrants evidenced by such
Warrant Certificate. Such certificate shall be deemed to have been issued and
any person so designated to be named therein shall be deemed to have become the
holder of record of such Share or Shares as of the date of the surrender of such
Warrant Certificate and payment of the Exercise Price. The Warrant Agent is
hereby authorized to countersign and deliver the required new Warrant
Certificate or Certificates, if any, pursuant to the provisions of this Section
6 and of Section 5.
The "Closing Price" of the Common Stock for purposes of this Section 6
shall mean (i) the closing price of the Common Stock on the applicable day(s) on
the American Stock Exchange or such other national securities exchange, or The
Nasdaq Stock Market's National Market ("Nasdaq National Market"), whichever is
the principal market on which such Common Stock is then listed or admitted to
trading, (ii) if no sale takes place on such day(s) on such exchange or the
Nasdaq National Market, as the case may be, the highest reported closing bid
price on such day(s) as officially quoted on such exchange or the Nasdaq
National Market, as the case may be, (iii) if the Common Stock is not then
listed or admitted to trading on any such securities exchange or the Nasdaq
National Market, as the case may be, the highest reported closing bid on such
day(s) in the over-the counter market, as furnished by the Nasdaq system, (iv)
if such corporation at the time is not engaged in the business of reporting such
prices, such price as furnished by any similar firm then engaged in such
business, or (v) if there is no such firm, such price as furnished by any
nationally recognized member of the NASD selected by the Company which is
independent of the Company. The "Closing Price" shall mean the referenced prices
on a "regular way" basis, i.e., priced exclusive of any dividends.
SECTION 7. Payment of Taxes. The Company will pay all documentary stamp
taxes attributable to the initial issuance of Shares upon the exercise of
Warrants; provided, however, that the Company shall not be required to pay any
tax or taxes which may be payable in respect of any transfer involved in the
issue of any Warrant Certificates or any certificate for Shares in a name other
than that of the registered holder of a Warrant Certificate surrendered upon the
exercise of a Warrant, and the Company shall not be required to issue or deliver
such certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
SECTION 8. Mutilated or Missing Warrant Certificates. In case any of
the Warrant Certificates shall be mutilated, lost, stolen or destroyed, the
Company may in its discretion issue, and the Warrant Agent shall countersign and
deliver, in exchange and substitution for and upon cancellation of the mutilated
Warrant Certificate, or in lieu of and in substitution for the Warrant
Certificate lost, stolen or destroyed, a new Warrant Certificate of like tenor
and representing an equivalent number of Warrants, but only upon receipt of
evidence satisfactory to the Company and the Warrant Agent of such loss, theft
or destruction of such Warrant Certificate and indemnity or bond, if requested,
also satisfactory to them. Applicants for such substitute Warrant Certificates
shall also comply with such other reasonable regulations and pay such other
reasonable charges as the Company or the Warrant Agent may prescribe.
SECTION 9. Reservation of Shares. The Company will at all times reserve
and keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued Common Stock or treasury Common Stock, for the purpose
of enabling it to satisfy any obligation to issue Shares upon exercise of
Warrants, through the close of
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business on the Termination Date, the number of Shares deliverable upon the
exercise of all outstanding Warrants, and the transfer agent for such Common
Stock is hereby irrevocably authorized and directed at all times to reserve such
number of authorized and unissued shares of Common Stock or treasury Common
Stock as shall be required for such purpose. The Company will keep a copy of
this Agreement on file with such transfer agent. The Warrant Agent is hereby
irrevocably authorized to requisition from time to time from such transfer agent
stock certificates issuable upon exercise of outstanding Warrants, and the
Company will supply such transfer agent with duly executed stock certificates
for such purpose.
Before taking any action which would cause an adjustment pursuant to
Section 11 reducing the Exercise Price below the then par value (if any) of the
Shares issuable upon exercise of the Warrants, the Company will take any
corporate action which may, in the opinion of its counsel (which may be counsel
employed by the Company), be necessary in order that the Company may validly and
legally issue fully paid and non-assessable Shares at the Exercise Price as so
adjusted.
The Company covenants that all Shares issued upon exercise of the
Warrants will, upon issuance in accordance with the terms of this Agreement, be
fully paid and non-assessable and free from all taxes, liens, charges and
security interests created by the Company with respect to the issuance thereof.
SECTION 10. Obtaining of Governmental Approvals. The Company from time
to time will use its best efforts to obtain and keep effective any and all
permits, consents and approvals of governmental agencies and authorities and to
make securities acts filings under federal and state laws, which may be or
become requisite in connection with the issuance, sale, transfer and delivery of
the Warrant Certificates, the exercise or conversion of the Warrants and the
issuance, sale, transfer and delivery of the Shares issued upon exercise of the
Warrants.
SECTION 11. Adjustment of Exercise Price and Number of Shares
Purchasable or Number of Warrants. The Exercise Price, the number of Shares
purchasable upon the exercise of each Warrant and the number of Warrants
outstanding are subject to adjustment from time to time upon the occurrence of
the events enumerated in this Section 11.
(a) In case the Company shall at any time after the date of this
Agreement (i) declare a dividend on the Common Stock payable in shares of its
capital stock (whether shares of Common Stock or of capital stock of any other
class), (ii) subdivide the outstanding Common Stock, (iii) combine the
outstanding Common Stock into a smaller number of shares or (iv) issue any of
its capital stock in a reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), the Exercise Price in effect at the time
of the record date for such dividend or of the effective date of such
subdivision, combination or reclassification, and/or the number and kind of
shares of capital stock issuable on such date shall be proportionately adjusted
so that the holder of any Warrant exercised after such time shall be entitled to
receive the aggregate number and kind of shares of capital stock which, if such
Warrant had been exercised immediately prior to such date, he would have owned
upon such exercise and been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification. Such adjustment shall be made
successively whenever any event listed above shall occur.
(b) In case the Company shall fix a record date for the making of a
distribution to all holders of Common Stock (including any such distribution
made in connection with a consolidation or merger in which the Company is the
continuing corporation) of evidences of indebtedness or assets (other than cash
dividends or cash distributions payable out of consolidated earnings or earned
surplus, or dividends payable in Common Stock or subscription rights or
warrants), the Exercise Price to be in effect after such record date shall be
determined by multiplying the Exercise Price in effect immediately prior to such
record date by a fraction, of which the numerator shall be the Fair Market Value
per share of Common Stock (as defined in Section 11 (c), on such record date,
less the fair market value (as determined by the Board of Directors of the
Company, whose determination shall be conclusive if based on reasonable
assumptions, and described in a statement filed with the Warrant Agent) of the
portion of the assets or evidences of indebtedness so
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to be distributed or of such subscription rights or warrants applicable to one
share of Common Stock and of which the denominator shall be such Fair Market
Value (as defined in Section 11 (c)) per share of Common Stock. Such adjustment
shall be made successively whenever such a record date is fixed; and in the
event that such distribution is not so made, the Exercise Price shall again be
adjusted to the Exercise Price which would then be in effect is such record had
not been fixed.
(c) For the purpose of any computation under Section 11(b), the Fair
Market Value per share of Common Stock on any date shall be deemed to be the
average of the daily Fair Market Value for the 30 consecutive trading days.
"Fair Market Value" means (i) the highest closing sale price, regular way
(excluding dividends or accrued interests), on such day on the National Exchange
which is the principal market for such securities, (ii) if no sale takes place
on such day(s) on such National Exchange, the last reported closing bid on such
day as officially quoted on such National Exchange or (iii) if the Common Stock
is not then listed or admitted to trading on any such National Exchange, the
last reported closing bid on such day(s) in the over-the-counter market, as
furnished by Nasdaq system or other recognized reporting entity.
(d) No adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in such price;
provided, however, that any adjustments which by reason of this Section 11(d)
are not required to be made shall be carried forward and into account in any
subsequent adjustment. All calculations under this Section 11 shall be made to
the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(e) In the event that at any time, as a result of an adjustment made
pursuant to Section 11 (a), the holder of any Warrant thereafter exercised shall
become entitled to receive any shares of capital stock of the Company other than
shares of Common Stock, thereafter the number of such other shares so receivable
upon exercise of any Warrant 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 contained in Section 11(a) and (b), inclusive, and the
provisions of Sections 6, 7, 9, 10, 11(d), 11(i) and 12 with respect to the
Shares shall apply on like terms to any such other shares.
(f) In any case in which this Section 11 shall require that an
adjustment in the Exercise Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuing to the holder of any Warrant exercised after such record date
the Shares and other capital stock of the Company, if any, issuable upon such
exercise over and above the Shares and other capital stock of the Company, of
any, issuable upon such exercise on the basis of the Exercise Price in effect
prior to such adjustment; provided, however, that the Company shall deliver to
such holder a due ▇▇▇▇ or other appropriate instrument evidencing such holder's
right to receive such additional shares upon the occurrence of the event
requiring such adjustment.
(g) Unless the Company shall have exercised its election as provided in
Section 11(h), upon each adjustment of the Exercise Price as a result of the
calculations made in Section 11 (a) or (b), each Warrant outstanding immediately
prior to the making of such adjustment shall thereafter evidence the right to
purchase, at the adjusted Exercise Price, that number of Shares (calculated to
the nearest hundredth) obtained by (A) multiplying the number of Shares
purchasable upon exercise of a Warrant immediately prior to such adjustment of
the number of Shares by the Exercise Price in effect immediately prior to such
adjustment of the Exercise Price and (B) dividing the product so obtained by the
Exercise Price in effect immediately after such adjustment of the Exercise
Price.
(h) The Company may elect on or after the date of any adjustment of the
Exercise Price to adjust the number of Warrants, in substitution for an
adjustment in the number of Shares purchasable upon the exercise of a Warrant as
provided in Section 11(g).
(i) In case of any capital reorganization of the Company, or of any
reclassification of the Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
subdivision or combination), or in case of the consolidation of the Company with
or the merger of the Company with or into any other corporation or other entity
(other than a consolidation or merger in which the Company is the
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continuing corporation) or of the sale of the properties and assets of the
Company as, or substantially as an entirety to any other corporation, each
Warrant shall after such reorganization, reclassification, consolidation, merger
or sale be exercisable, upon the terms and conditions specified in this
Agreement, for the number of shares of stock or other securities or property to
which a holder of the number of Shares purchasable (at the time of such
reorganization, reclassification, consolidation, merger or sale) upon exercise
of such Warrant would have been entitled upon such reorganization,
reclassification, consolidation, merger or sale; and in any such case, if
necessary, the provisions set forth in this Section 11 with respect to the
rights and interests thereafter of the holders of the Warrants shall be
appropriately adjusted so as to be applicable as nearly as may reasonably be, to
any shares of stock or other securities or property thereafter deliverable on
the exercise of the Warrants. The subdivision or combination of shares of Common
Stock at any time outstanding into a greater or lesser number of shares shall
not be deemed to be a reclassification of the Common Stock for the purposes of
this Section 11(i). The Company shall not effect any such consolidation, merger
or sale, unless prior to or simultaneously with the consummation thereof the
successor corporation (if other than the Company) resulting from such
consolidation or merger or the corporation purchasing such assets or other
appropriate corporation or entity shall assume, by written instrument executed
and delivered to the Warrant Agent, the obligation to deliver to the holder of
each Warrant such shares of stock, securities or assets as, in accordance with
the foregoing provisions, such holder may be entitled to purchase and the other
obligations under this Agreement.
SECTION 12. Fractional Warrants and Fractional Shares. (a) The Company
shall not be required to issue fractions of Warrants on any distribution of
Warrants to holders of Warrant Certificates pursuant to Section 11 or to
distribute Warrant Certificates which evidence fractional Warrants. In lieu of
such fractional Warrants the Company, in its sole discretion shall either (i)
round the Warrants issuable up to the nearest whole Warrant or (ii) pay or cause
to be paid to the registered holders of the Warrant Certificates with regard to
which such fractional Warrants would otherwise be issuable, an amount in cash
equal to the same fraction of the current Fair Market Value of a full Warrant.
For purposes of this Section 12, the Fair Market Value of the Warrant shall be
the Fair Market Value of the Warrant (as determined pursuant to the second
sentence of Section 11(c)) for the trading day immediately prior to the date on
which such fractional Warrant would have been otherwise issuable.
SECTION 13. Notice to Warrant Holders. Upon any adjustment of the
Exercise Price pursuant to Section 11, the Company within 20 calendar days
thereafter shall (i) cause to be filed with the Warrant Agent a certificate of a
firm of independent public accountants with recognized standing selected by the
Company (who may be the regular auditors of the Company) setting forth the
Exercise Price after such adjustment and setting forth in reasonable detail the
method of calculation and the facts upon which such calculations are based and
setting forth the number of Shares purchasable upon exercise of a Warrant after
such adjustment in the Exercise Price, which certificate shall be conclusive
evidence of the correctness of the matters set forth therein and (ii) cause to
be given to each of the registered holders of the Warrant Certificates at his
address appearing on the Warrant register written notice of such adjustments by
first-class mail, postage prepaid. Where appropriate, such notice may be given
in advance and included as a part of the notice required to be mailed under the
other provisions of this Section 13. The Warrant Agent shall be fully protected
in relying on any such certificate and on any adjustment therein contained and
shall not be obligated or responsible for calculating any adjustment nor shall
it be deemed to have knowledge of such adjustment unless and until it shall have
received such certificate.
SECTION 14. Merger, Consolidation or Change of Name of Warrant Agent.
Any corporation into which the Warrant Agent may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party, or any
corporation succeeding to the corporate trust business of the Warrant Agent,
shall be the successor to the Warrant Agent hereunder without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
provided that such corporation would be eligible for appointment as a successor
Warrant Agent under the provisions of Section 18. In case at the time such
successor to the Warrant Agent shall succeed under this Agreement, any of the
Warrant Certificates shall have been countersigned but not delivered, any such
successor to the Warrant Agent may adopt the countersignature of the original
Warrant Agent; and in case at that time any of the Warrant Certificates shall
not have been countersigned, any successor to the Warrant Agent may countersign
such Warrant Certificates either in the name of the predecessor Warrant Agent
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or in the name of the successor Warrant Agent; and in all such cases such
Warrant Certificates shall have the full force provided in the Warrant
Certificates and in this Agreement.
In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrant Certificates shall have been countersigned but
not delivered, the Warrant Agent whose name has changed may adopt the
countersignature under its prior name, and in case at that time any of the
Warrant Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its changed
name, and in all such cases such Warrant Certificates shall have the full force
provided in the Warrant Certificates and in this Agreement.
SECTION 15. Warrant Agent. The Warrant Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the holders of Warrants, by their acceptance
thereof, shall be bound:
(a) The statements contained herein and in the Warrant
Certificates shall be taken as statements of the Company, and the
Warrant Agent assumes no responsibility for the correctness of any of
the same except such as describe the Warrant Agent or action taken or
to be taken by it. The Warrant Agent assumes no responsibility with
respect to the execution, delivery or distribution of the Warrant
Certificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure
of the Company to comply with any of the covenants contained in this
Agreement or in the Warrant Certificates to be complied with by the
Company nor shall it at any time be under any duty or responsibility to
any holder of a Warrant to make or cause to be made any adjustment in
the Exercise Price or in the number of Shares issuable (except as
instructed by the Company), or to determine whether any facts exist
which may require any such adjustments, or with respect to the nature
or extent of or method employed in making any such adjustments when
made.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant
Agent shall incur no liability or responsibility to the Company or to
any holder of any Warrant Certificate in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance
with the opinion or the advice of such counsel.
(d) The Warrant Agent may conclusively rely upon and shall
incur no liability or responsibility to the Company or to any holder of
any Warrant Certificate for any action taken in reliance on any notice,
resolution, waiver, consent, order, certificate, or other paper,
document or instrument believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
Notwithstanding anything in this Agreement to the contrary, in no event
shall the Warrant Agent be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not
limited to lost profits), even if the Warrant Agent has been advised of
the likelihood of such loss or damage and regardless of the form of the
action.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent under this
Agreement, to reimburse the Warrant Agent upon demand for all expenses,
taxes and governmental charges and other charges of any kind and nature
incurred by the Warrant Agent in the execution of its duties under this
Agreement and to indemnify the Warrant Agent and save it harmless
against any and all losses, liabilities and expenses, including
judgments, costs and counsel fees, for anything done or omitted by the
Warrant Agent arising out of or in connection with this Agreement,
except as a result of its negligence or bad faith. The costs and
expenses of enforcing this right of indemnification shall also be paid
by the Company. The indemnification provided for hereunder shall
survive the expiration of the Warrants and termination of this
Agreement.
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(f) The Warrant Agent shall be under no obligation to
institute any action, suit or legal proceeding or to take any other
action likely to involve expense unless the Company or one or more
registered holders of Warrant Certificates shall furnish the Warrant
Agent with reasonable security and indemnity for any costs and expenses
which may be incurred. All rights of action under this Agreement or
under any of the Warrants may be enforced by the Warrant Agent without
the possession of any of the Warrant Certificates or the production
thereof at any trial or other proceeding relative thereto, and any such
action, suit or proceeding instituted by the Warrant Agent shall be
brought in its name as Warrant Agent, and any recovery or judgment
shall be for the ratable benefit of the registered holders of the
Warrants, as their respective rights or interests may appear.
(g) The Warrant Agent, and any stockholder, director, officer
or employee thereof, may buy, sell or deal in any of the Warrants or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as
though it were not Warrant Agent under this Agreement. Nothing herein
shall preclude the Warrant Agent from acting in any other capacity for
the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for
the Company, and its duties shall be determined solely by the
provisions hereof and no implied duties or obligations shall be read
into this Agreement against the Warrant Agent. The Warrant Agent shall
not be liable for anything which it may do or refrain from doing in
connection with this Agreement, except for its own negligence or bad
faith.
(i) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts, instruments
and assurances as may reasonably be required by the Warrant Agent for
the carrying out or performing of the provisions of this Agreement.
(j) The Warrant Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Warrant Agent) or in
respect of the validity or execution of any Warrant Certificate (except
its countersignature thereof); nor shall the Warrant Agent by any act
hereunder be deemed to make any representation or warranty as to the
authorization or reservation of the Shares to be issued pursuant to
this Agreement or any Warrant Certificate or as to whether the Shares
will when issued by validity issued, fully paid and non-assessable or
as to the Exercise Price or the number of Shares issuable upon exercise
of any Warrant.
(k) The Warrant Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from the Chairman of the Board, the Chief Executive Officer,
the President, any Vice-President, the Secretary or an Assistant
Secretary of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and shall not be liable for
any action taken or suffered to be taken by it in good faith in
accordance with instructions of any such officer or in good faith
reliance upon any statement signed by any one such officers of the
Company with respect to any fact or matter (unless other evidence in
respect thereof is herein specifically prescribed) which may be deemed
to be conclusively proved and established by such signed statement. 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 or after which such action shall be
taken or such omission shall be effective. The Warranty Agent shall not
be liable for any action taken by, or omission of, the Warrant Agent in
accordance with a proposal included in any such application or after
the date specified in such application (which date shall not be less
than ten Business Days after the date any officer of the Company
actually receives such application, unless any such officer shall have
consented in writing to an earlier date) unless, prior to taking any
such action (or the effective date in the case
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of an omission), the Warrant Agent shall have received written
instructions in response to such application subject to the proposed
action or omission and/or specifying the action taken or omitted.
(l) 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 hereunder 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.
(m) The Warrant Agent shall not be required to take notice or
be deemed to have any notice of any fact, event or determination under
this Agreement unless and until the Warrant Agent shall be specifically
notified in writing by the Company of such fact, event or
determination.
(n) If, with respect to any Warrant Certificate surrendered to
the Warrant Agent for exercise or transfer, the certificate attached to
the form of assignment or form of election to purchase, as the case may
be, has not been completed, the Warrant Agent shall not take any
further action with respect to such requested exercise of transfer
without first consulting with the Company.
(o) The Warrant Agent shall be liable hereunder to the Company
and any other person only for its own negligence, bad faith or willful
misconduct.
SECTION 16. Disposition of Proceeds of Exercise of Warrants. The
Warrant Agent shall account promptly to the Company with respect to Warrants
exercised and concurrently pay to the Company all moneys received by the Warrant
Agent on the purchase of Shares through the exercise of Warrants.
SECTION 17. Change of Warrant Agent. If the Warrant Agent shall resign
(such resignation to become effective not earlier than 30 days after the giving
of written notice thereof to the Company and, at the expense of the Company, to
the registered holders of Warrant Certificates) or shall become incapable of
acting as Warrant Agent, the Company shall appoint a successor. If the Company
shall fail to make such appointment within a period of 30 days after it has been
so notified in writing by the Warrant Agent or by the registered holder of a
Warrant Certificate (in the case of incapacity), then the registered holder of
any Warrant Certificate may apply to any court of competent jurisdiction for the
appointment of a successor to the Warrant Agent. Pending appointment of a
successor to the Warrant Agent, either by the Company or by such a court, the
duties of the Warrant Agent shall be carried out by the Company. Any successor
warrant agent whether appointed by the Company or by such a court shall be a
bank or trust company, in good standing, incorporated under the laws of the
United States of America or any State thereof, and must have at the time of its
appointment as warrant agent a combined capital and surplus of at least fifty
million dollars. After appointment the successor warrant agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been
originally named as Warrant Agent without further act or deed; but the former
Warrant Agent shall deliver and transfer to the successor warrant agent any
property at the time held by it hereunder and execute and deliver, at the
expense of the Company, any further assurance, conveyance, act or deed necessary
for the purpose. Failure to give any notice provided for in this Section,
however, or any defect therein, shall not affect the legality or validity of the
removal of the Warrant Agent or the appointment of a successor warrant agent, as
the case may be.
SECTION 18. Notices to Company and Warrant Agent. Any notice or demand
authorized by this Agreement to be given or made by the Warrant Agent or by the
registered holder of any Warrant Certificate to the Company shall be
sufficiently given or made if sent by mail, first class or registered, postage
prepaid, addressed (until another address is filed in writing by the Company
with the Warrant Agent), as follows:
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▇▇▇▇ International Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Chief Executive Officer and President
In case the Company shall fail to maintain such office or agency or
shall fail to give such notice of the location or of any change in the location
thereof, presentations may be made and notices and demands may be served at the
principal office of the Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by
the registered holder of any Warrant Certificate to the Warrant Agent shall be
sufficiently given if sent by registered or certified mail and shall be deemed
given upon receipt, addressed (until another address is filed in writing by the
Warrant Agent with the Company) to the Warrant Agent as follows:
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
SECTION 19. Supplements and Amendments. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement without the
approval of any holders of Warrant Certificates in order to cure any ambiguity
or to correct or supplement any provision contained herein which may be
defective or inconsistent with any other provision herein, or to make any other
provisions in regard to matters or questions arising hereunder which the Company
and the Warrant Agent may deem necessary or desirable and which shall not
adversely affect the interests of the holders of Warrant Certificates. The
Company may extend the period during which the Warrants are exerciseable and
lower the Exercise Price without the approval of the holders or the Warrant
Agent. Notwithstanding anything in this Agreement to the contrary, no supplement
or amendment that changes the rights and duties of the Warrant Agent under this
Agreement will be effective against the Warrant Agent without the execution of
such supplement or amendment by the Warrant Agent.
SECTION 20. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 21. Termination. This Agreement shall terminate at the close of
business on April 30, 2002. Notwithstanding the foregoing, this Agreement will
terminate on any earlier date if all Warrants have been exercised. The
provisions of Section 15 shall survive such termination.
SECTION 22. Governing Law. This Agreement and each Warrant Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Ohio and for all purposes shall be construed in accordance with the
laws of said State.
SECTION 23. Benefits of This Agreement. Nothing in this Agreement shall
be construed to give to any person or corporation other than the Company, the
Warrant Agent and the registered holders of the Warrant Certificates any legal
or equitable right, remedy or claim under this Agreement; but this Agreement
shall be for the sole and exclusive benefit of the Company, the Warrant Agent
and the registered holders of the Warrant Certificates.
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SECTION 24. Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be original, and all such counterparts shall together constitute but one and
the same instrument.
SECTION 25. Definitions. Certain capitalized terms used herein have the
meaning ascribed to them in the Definitions Appendix hereto dated an even date
herewith.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
▇▇▇▇ INTERNATIONAL CORP.
By
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Chief Executive Officer and President
[SEAL]
Attest:
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Controller
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Warrant Agent
By
------------------------------------
Vice President
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EXHIBIT "A"
[FORM OF WARRANT CERTIFICATE]
[FACE]
EXERCISABLE ONLY ON OR AFTER OCTOBER 1, 2000 DURING THE EFFECTIVENESS OF A
REGISTRATION STATEMENT COVERING THE COMMON STOCK ISSUABLE UPON EXERCISE AND
ON OR BEFORE SEPTEMBER 30, 2002
[ ##s] WARRANTS
WARRANT CERTIFICATE
▇▇▇▇ INTERNATIONAL CORP.
This Warrant Certificate certifies that __________________, or
registered assigns, is the registered holder of [ ##s] Warrants (the "Warrants")
expiring September 30, 2002 to purchase shares of Common Stock, without par
value, of ▇▇▇▇ INTERNATIONAL CORP., an Ohio corporation (the "Company"). Each
Warrant entitles the holder to purchase from the Company on or after October 1,
2000 and on, or before the close of business (6:00 p.m. New York time) on April
30, 2002 one fully paid and non-assessable share of Common Stock, without par
value, of the Company (the "Shares") at the initial exercise price (the
"Exercise Price") of $3.875 per share payable in lawful money of the United
States of America, upon surrender of this Warrant Certificate and payment of the
Exercise Price at the office or agency of the Warrant Agent in Atlanta, Georgia
(the "Warrant Agent Office"), but only subject to the conditions set forth
herein and in the Warrant Agreement. As provided in the Warrant Agreement, each
Warrant may be exercised on or after October 1, 2000 only if a registration
statement covering the shares issuable upon exercise of the Warrant has been
declared effective by the Securities and Exchange Commission ("SEC") and is
effective at the time of exercise. The Exercise Price and number of Shares
purchasable upon exercise of the Warrants are subject to adjustment upon the
occurrence of certain events set forth in the Warrant Agreement.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the
Warrant Agent, as such term is used in the Warrant Agreement.
WITNESS the facsimile seal of the Company and the facsimile signatures
of its duly authorized officers. Dated: ▇▇▇▇ INTERNATIONAL CORP.
By
---------------------------------
Chief Executive Officer and President
Countersigned:
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Warrant Agent
By
---------------------------------
Secretary
By:
--------------------------------
Authorized Signature
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[FORM OF WARRANT CERTIFICATE]
[REVERSE]
▇▇▇▇ INTERNATIONAL CORP.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring September 30, 2002 to purchase shares of
Common Stock, without par value, of the Company, and are issued or to be issued
pursuant to a Warrant Agreement dated as of August 20, 1999 (the "Warrant
Agreement"), duly executed and delivered by the Company to ▇▇▇▇▇▇ Trust and
Savings Bank, as Warrant Agent (the "Warrant Agent"), 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 Warrant Agent, the Company
and the holders (the words "holders" and "holder" meaning the registered holders
or registered holder) of the Warrants.
Warrants may be exercised to purchase Shares from the Company on or
after October 1, 2000 and on or before the close of business (6:00 p.m. New York
time) on the Termination Date, at the Exercise Price set forth on the face
hereof, subject to adjustment, as hereinafter referred to, provided, however,
that a registration statement filed with the Securities and Exchange Commission
covering the Shares be effective at the time of such exercise. The holder of
exercisable Warrants evidenced by the Warrant Certificate may exercise them by
surrendering the Warrant Certificate, with the form of election to purchase set
forth hereon properly completed and executed, together with payment of the
Exercise Price at the Warrant Agent Office. In the event that upon any exercise
of Warrants evidenced hereby the number of Warrants exercised shall be less than
the total number of Warrants evidenced hereby, there shall be issued to the
holder hereof or his assignee a new Warrant Certificate evidencing the number of
Warrants not exercised. No adjustment shall be made for any cash dividends on
any Shares issuable upon exercise of this Warrant.
Payment of the Exercise Price of Warrants may be made by tendering cash
only.
The Warrant Agreement provides that, upon the occurrence of certain
events, the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that, at the election of the Company, either (i) the number
of Shares purchasable upon the exercise of each Warrant shall be adjusted or
(ii) each outstanding Warrant shall be adjusted to become a different number of
Warrants. In the latter event, the Company will cause to be distributed to
registered holders of Warrant Certificates either Warrant Certificates
representing the additional Warrants issuable pursuant to the adjustment or
substitute Warrant Certificates to replace all outstanding Warrant Certificates.
The Company may, but shall not be required to issue fractions of
Warrants or fractions of Shares or any certificates which evidence Warrants or
fractional Shares. In lieu of such fractional Warrants and fractional Shares,
the Company may instead pay to the registered holders of the Warrant
Certificates with regard to which such fractional Warrants or fractional Shares
otherwise issuable, at the sole election of the Company either (i) an amount in
cash equal to the same fraction of the current market value (as determined
pursuant to the Warrant Agreement) of a full Warrant or a full Share, as the
case may be or (ii) a full Warrant or full Share, as the case may be, in lieu of
such fractional Share or fractional Warrant.
Warrant Certificates, when surrendered at the Warrant Agent Office by
the registered holder thereof in person or by legal representative or by
attorney duly authorized in writing, may be exchanged, in the manner and subject
to the limitations provided in the Warrant Agreement, but without payment of any
service charge, for another Warrant Certificate or Warrant Certificates of like
tenor evidencing in the aggregate a like number of Warrants.
Upon due presentment for registration of transfer of this Warrant
Certificate at the Warrant Agent Office, 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 in exchange of this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
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The Company and the Warrant Agent may deem and treat the registered
holder hereof as the absolute owner of this Warrant Certificate (notwithstanding
any notation of ownership or other writing hereon made by anyone) for the
purpose of any exercise or conversion hereof and for all other purposes, and
neither the Company nor the Warrant Agent shall be affected by any notice to the
contrary.
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[FORM OF ELECTION TO EXERCISE]
(To be executed upon exercise of Warrant prior to the close of business
on the Termination Date)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase _____ Shares and herewith
tenders payment for such Shares in the amount of $________ cash. The undersigned
requests that a certificate representing the Shares be registered in the name of
_______________________ whose address is ______________ and that such
certificate be delivered to _____________________ whose address is ____________.
If said number of Shares is less than all the Shares purchasable hereunder, the
undersigned requests that a new Warrant Certificate representing the balance of
the Shares be registered in the name of ___________________ whose address is
_____________________ and that such Warrant Certificate be delivered to
_____________________ whose address is _______________________. Any cash
payments to be paid in lieu of a fractional Share should be made to __________
whose address is ___________________________ and the check representing payment
thereof should be delivered to ____________________ whose address is
_____________________________________.
Dated: _________________, ____
[Social Security Box]
Name of holder of Warrant Certificate: ________________
(Please print)
Address:______________________________________________
______________________________________________________
Signature: ___________________________________________
Note: The above signature must correspond
with the same as written upon the face of
this Warrant Certificate in every
particular, without alteration or
enlargement or may change whatever and if
the certificate representing the Shares or
any Warrant Certificate representing
Warrants not exercised hereunder is to be
registered in a name other than that in
which this Warrant Certificate is
registered, the signature of the holder
hereof must be guaranteed.
Signature Guaranteed:
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[FORM OF ASSIGNMENT]
For value received ______________________ hereby sells, assigns and
transfers unto _____________ the within Warrant Certificate, together with all
right, title and interest therein, and does hereby irrevocably constitute and
appoint ________________ attorney, to transfer said Warrant Certificate on the
books of the within-named Company, with full power of substitution in the
premises.
Dated: ___________________, ____
_____________________________________________________
Note: The above signature must correspond with the
name as written upon the face of this
Warrant Certificate in every particular,
without alteration or enlargement or any
change whatever.
Signature Guaranteed:
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