EXHIBIT 4(b)
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND MAY NOT BE SOLD, OFFERED FOR SALE, ASSIGNED, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS REGISTERED PURSUANT TO THE PROVISIONS OF THAT
ACT OR UNLESS SUCH DISPOSITION IS IN COMPLIANCE WITH AN AVAILABLE EXEMPTION
FROM SUCH REGISTRATION.
THIS WARRANT MAY NOT BE EXERCISED BY OR ON BEHALF OF ANY "U.S.
PERSON", AS DEFINED UNDER REGULATION S PROMULGATED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED UNLESS REGISTERED UNDER THAT ACT OR AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE.
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NOISE CANCELLATION TECHNOLOGIES, INC.
(Incorporated under the laws of the State of Delaware)
Void after 5:00 p.m., New York City time, on January 31, 1999
Warrant to Purchase
75,000 Shares of
Common Stock
Warrant for the Purchase of Shares of Common Stock
No. 97001
FOR VALUE RECEIVED, NOISE CANCELLATION TECHNOLOGIES, INC. (the
"Company"), a Delaware corporation, on this 31st day of January, 1997 (the
"Grant Date") hereby issues this warrant (the "Warrant") and certifies that
Willora Company, Ltd. (the "Holder") is granted the right, subject to the
provisions of the Warrant, to purchase from the Company, at any time, or
from time to time during the period commencing at 9:00 a.m. New York City
local time on March 18, 1997 (the forty-sixth (46th) day after the Grant
Date), and expiring, unless earlier terminated as hereinafter provided, at
5:00 p.m. New York City local time on January 31, 1999 up to seventy-five
thousand (75,000) fully paid and nonassessable shares of Common Stock, $.01
par value, of the Company at a price of $_.__ per share (such exercise
price per share, as so adjusted, being hereinafter referred to as the
"Exercise Price").
The term "Common Stock" means the shares of Common Stock, $.01 par
value, of the Company as constituted on the Grant Date of this Warrant,
together with any other equity securities that may be issued by the Company
in addition thereto or in substitution therefor. The number of shares of
Common Stock to be received upon the exercise of this Warrant may be
adjusted from time to time as hereinafter set forth. The shares of Common
Stock deliverable upon such exercise, and as adjusted from time to time,
are hereinafter sometimes referred to as "Warrant Stock".
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and (in the
case of loss, theft or destruction) of reasonably satisfactory
indemnification, and upon surrender and cancellation of this Warrant, if
mutilated, the Company shall execute and deliver a new Warrant of like
tenor and date. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the Company,
whether or not this Warrant so lost, stolen, destroyed or mutilated shall
be at any time enforceable by anyone.
The Holder agrees with the Company that this Warrant is issued, and
all the rights hereunder shall be held, subject to all of the conditions,
limitations and provisions set forth herein.
1. Exercise of Warrant. This Warrant shall not be exercised within the
United States and shares of Common Stock issuable upon the exercise of this
Warrant shall not be delivered within the United States upon exercise,
other than in offerings deemed to meet the definition of "offshore
transaction" pursuant to paragraph (i)(3) of Rule 902 of Regulation S
promulgated under the Securities Act of 1933, as amended (the "1933 Act"),
unless registered under the 1933 Act or an exemption from such registration
is available.
Subject to the foregoing, this Warrant may be exercised in whole or in
part at any time, or from time to time, during the period commencing at
9:00 a.m., New York City local time, on January 31, 1997, and expiring at
5:00 p.m., New York City local time, on January 31, 1999, or, if such day
is a day on which banking institutions in the City of New York are
authorized by law to close, then on the next succeeding day that shall not
be such a day.
Subject to the restrictions and limitations set forth above, this
Warrant may be exercised by presentation and surrender hereof to the
Company at its principal office with the Warrant Exercise Form attached
hereto duly executed and accompanied by payment (either in cash or by
certified or official bank check, payable to the order of the Company) of
the Exercise Price for the number of shares specified in such Form and
instruments of transfer, if appropriate, duly executed by the Holder. If
this Warrant should be exercised in part only, the Company shall, upon
surrender of this Warrant for cancellation, execute and deliver a new
Warrant evidencing the rights of the Holder thereof to purchase the balance
of the shares purchasable hereunder. Upon receipt by the Company of this
Warrant, together with the Warrant Exercise Form and the Exercise Price, at
its office, in proper form for exercise, the Holder shall be deemed to be
the holder of record of the shares of Common Stock issuable upon such
exercise, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such shares of
Common Stock shall not then be actually delivered to the Holder. The
Company shall pay any and all documentary stamp or similar issue or
transfer taxes payable in respect of the issue or delivery of shares of
Common Stock on exercise of this Warrant.
2. Reservation of Shares. The Company will at all times reserve for
issuance and delivery upon exercise of this Warrant all shares of Common
Stock of the Company from time to time receivable upon exercise of this
Warrant. All such shares shall be duly authorized and, when issued upon
such exercise, shall be validly issued, fully paid and nonassessable and
free of all preemptive rights.
3. Warrant Stock Transfer to Comply with the Securities Act of 1933.
The Warrant Stock may not be sold or otherwise disposed of unless
registered pursuant to the provisions of the 1933 Act or unless such sale
or other disposition is made in compliance with an available exemption from
such registration. Any sale or other disposition of the Warrant Stock must
also comply with all applicable state securities laws and regulations.
4. Fractional Shares. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this Warrant, but
the Company shall issue one additional share of its Common Stock in lieu of
each fraction of a share otherwise called for upon any exercise of this
Warrant.
5. Exchange, Transfer, Assignment of Loss of Warrant. This Warrant is
not registered under the 1933 Act nor under any applicable state securities
law or regulation. This Warrant cannot be sold, exchanged, transferred,
assigned or otherwise disposed of unless registered pursuant to the
provisions of the 1933 Act or unless such disposition is in compliance with
an available exemption from registration. Any such disposition must also
comply with applicable state securities laws and regulations.
6. Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder of the Company, either at law or in
equity, and the rights of the Holder are limited to those expressed in this
Warrant.
7. Redemption. This Warrant is not redeemable by the Company.
8. Anti-Dilution Provisions.
8.1 Adjustment for dividends in Other Securities, Property, Etc.:
Reclassification, Etc. In case at any time or from time to time after the
Grant Date the holders of Common Stock (or any other securities at the time
receivable upon the exercise of this Warrant) shall have received, or on or
after the record date fixed for the determination of eligible stockholders,
shall have become entitled to receive without payment therefor: (a) other
or additional securities or property (other than cash) by way of dividend,
(b) any cash paid or payable except out of earned surplus of the Company at
the Grant Date as increased (decreased) by subsequent credits (charges)
thereto (other than credits in respect of any capital or paid-in surplus or
surplus created as a result of a revaluation of property) or (c) other or
additional (or less) securities or property (including cash) by way of
stock-split, spin-off, split-up, reclassification, combination of shares or
similar corporate rearrangement, then, and in each such case, the Holder of
this Warrant, upon the exercise thereof as provided in Section 1, shall be
entitled to receive, subject to the limitations and restrictions set froth
above, the amount of securities and property (including cash in the cases
referred to in clauses (b) and (c) above) which such Holder would hold on
the date of such exercise if on the Grant Date it had been the holder of
record of the number of shares of Common Stock (as constituted on the Grant
Date) subscribed for upon such exercise as provided in Section 1 and had
thereafter, during the period from the Grant Date to and including the date
of such exercise, retained such shares and/or all other additional (or
less) securities and property (including cash in the cases referred to in
clauses (b) and (c) above) receivable by it as aforesaid during such
period, giving effect to all adjustments called for during such period by
Section 8.2.
8.2 Adjustment for Reorganization, Consolidation, Merger, Etc. In case
of any reorganization of the Company (or any other corporation, the
securities of which are at the time receivable on the exercise of this
Warrant) after the Grant Date or in case after such date the Company (or
any such other corporation) shall consolidate with or merge into another
corporation or convey all or substantially all of its assets to another
corporation, then, and in each such case, the Holder of this Warrant upon
the exercise thereof as provided in Section 1 at any time after the
consummation of such reorganization, consolidation, merger or conveyance,
shall be entitled to receive, in lieu of the securities and property
receivable upon the exercise of this Warrant prior to such consummation,
the securities or property to which such Holder would have been entitled
upon such consummation if such Holder had exercised this Warrant
immediately prior thereto, all subject to further adjustment as provided in
Section 8.1; in each such case, the terms of this Warrant shall be
applicable to the securities or property receivable upon the exercise of
this Warrant after such consummation.
8.3 Certificate as to Adjustments. In each case of an adjustment in
the number of shares of Common Stock (or other securities or property)
receivable on the exercise of the Warrant, the Company at its expense will
promptly compute such adjustment in accordance with the terms of the
Warrant and prepare a certificate setting forth such adjustment and showing
in detail the facts upon which such adjustment is based, including a
statement of (a) the consideration received or to be received by the
Company for any additional shares of Common Stock issued or sold or deemed
to have been issued or sold, (b) the number of shares of Common Stock
outstanding or deemed to be outstanding, and (c) the pro forma adjusted
Exercise Price. The Company will forthwith mail a copy of each such
certificate to the holder of this Warrant.
8.4 Notices of Record Date, Etc.
In case:
(a) the Company shall take a record of the holders of its Common Stock
(or other securities at the time receivable upon the exercise of the
Warrant) for the purpose of entitling them to receive any dividend (other
than a cash dividend) or other distribution, or any right to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any other
securities, or to receive any other right; or
(b) of any capital reorganization of the Company (other than a stock
split or reverse stock split), any reclassification of the capital stock of
the Company, any consolidation or merger of the Company with or into
another corporation (other than a merger for purposes of change of
domicile) or any conveyance of all or substantially all of the assets of
the Company to another corporation; or
(c) of any voluntary or involuntary dissolution, liquidation or
winding-up of the Company, then, and in each such case, the Company shall
mail or cause to be mailed to each holder of the Warrant at the time
outstanding a notice specifying, as the case may be, (i) the date on which
a record is to be taken for the purpose of such dividend, distribution or
right, and stating the amount and character of such dividend, distribution
or right, or (ii) the date on which such reorganization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or winding-up
is to take place, and the time, if any, is to be fixed, as to which the
holders of record of Common Stock (or such other securities at the time
receivable upon the exercise of the Warrant) shall be entitled to exchange
their shares of Common Stock (or such other securities) for securities or
other property deliverable upon such reorganization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or winding-up.
Such notice shall be mailed at least twenty (20) days prior to the date
therein specified and the Warrant may be exercised prior to said date
during the term of the Warrant no later than five (5) days prior to said
date.
9. Legend. In the event of the exercise of this Warrant and the
issuance of any of the Warrant Stock hereunder not in compliance with the
first paragraph of Section 2 hereof, all certificates representing Warrant
Stock shall bear on the face thereof substantially the following legends,
insofar as is consistent with Delaware law:
"The shares of common stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended, and may
not be sold, offered for sale, assigned, transferred or otherwise
disposed of, unless registered pursuant to the provisions of that Act
or an opinion of counsel acceptable to the Corporation is obtained
stating that such disposition is in compliance with an available
exemption from such registration."
10. Applicable Law. This Warrant is issued under and shall for all
purposes be governed by and construed in accordance with the laws of the
State of Delaware and of the United States of America.
11. Notice. Notices and other communications to be given to the Holder
of the Warrant evidenced by this certificate shall be deemed to have been
sufficiently given, if delivered or mailed, addressed in the name and at
the address of such owner appearing on the records of the Company, and if
mailed, sent registered or certified mail, postage prepaid. Notices or
other communications to the Company shall be deemed to have been
sufficiently given if delivered by hand or mailed, by registered or
certified mail, postage prepaid, to the Company at Xxx Xxxx Xxxxxx, Xxxxx
000, Xxxxxxxx, XX 00000, Attn: General Counsel, or at such other address as
the Company shall have designated by written notice to such registered
owner as herein provided, Notice by mail shall be deemed given when
deposited in the United States mail as herein provided.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
on its behalf, in its corporate name, by its duly authorized officer, all
as of the day and year set forth below.
Dated: January 31, 1997
NOISE CANCELLATION TECHNOLOGIES, INC.
/s/ XXXXXXX X. XXXXXXX
Xxxxxxx X. Xxxxxxx, Chief Financial Officer
WARRANT EXERCISE FORM
(To be executed by the Holder in order to Exercise the Warrant)
TO: Noise Cancellation Technologies, Inc.
0 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Xxxxxx, General Counsel
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing _________ shares of Common Stock of
Noise Cancellation Technologies, Inc. and hereby makes payment at the rate
of $__.___ per share, or an aggregate of $________, in payment therefor.
The undersigned represents, warrants and certifies as follows:
(a) The election to exercise the Warrant and purchase the Warrant
Stock was made outside of the United States and the undersigned was,
at the time this Warrant Exercise Form was executed and delivered, and
is now outside the United States;
(b) It is not a U.S. person (as such term is defined in Section 902(a)
of Regulation S ("Regulation S") promulgated under the United States
Securities Act of 1933, as amended (the "1933 Act") and it is
exercising the Warrant for its own account and not for the account or
benefit of any U.S. person;
(c) All offers and sales of the Warrant Stock shall be made pursuant
to an effective registration statement under the 1933 Act or pursuant
to an exemption from, or in a transaction not subject to, the
registration requirements of the 1933 Act;
(d) It is familiar with and understands the terms and conditions, and
requirements contained in Regulation S including, but not limited to,
the definitions of "U.S. person" and "offshore transactions" contained
in Regulation S.
Dated: January 31, 1997
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Name of Warrant Holder
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Signature
INSTRUCTIONS FOR ISSUANCE OF STOCK
(IF OTHER THAN TO THE REGISTERED HOLDER OF THE WITHIN WARRANT)
Name: ________________________________________________________
(Please type or print in block letters)
Address:_______________________________________________________
Social Security or Taxpayer Identification Number:_____________
