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EXHIBIT 4.2
THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND NEITHER IT NOR THE SHARES THAT
MAY BE PURCHASED HEREUNDER HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THIS WARRANT AND SUCH
SHARES MAY NOT BE SOLD OR TRANSFERRED, EXCEPT UPON SUCH REGISTRATION OR UPON
DELIVERY TO XXXXXX INCORPORATED OF AN OPINION OF COUNSEL SATISFACTORY TO XXXXXX
INCORPORATED THAT REGISTRATION IS NOT REQUIRED FOR SUCH SALE OR TRANSFER. IN
ADDITION, EXCEPT AS PROVIDED HEREIN, THIS WARRANT AND SUCH SHARES MAY NOT BE
SOLD OR TRANSFERRED UNTIL _________, 1998.
XXXXXX INCORPORATED
Warrant for the Purchase of Shares of Common Stock
No. [ ] 151,667 Shares
FOR VALUE RECEIVED, Xxxxxx Incorporated, a Nevada corporation
(the "Company"), hereby certifies that Ladenburg Xxxxxxxx & Co. Inc. or its
permitted assigns, is entitled to purchase from the Company, at any time or from
time to time commencing on _________________, 1997 and prior to 5:00 P.M., New
York City time, on _________________, 2002 (the "Exercise Period"), One Hundred
Fifty-One Thousand Six Hundred Sixty-Seven (151,667) fully paid and
non-assessable shares of the common stock, $.001 par value per share, of the
Company for an aggregate purchase price of $____ (computed on the basis of
$____ per share). Hereinafter, (i) said common stock, together with any other
equity securities which may be issued by the Company with respect thereto or in
substitution therefor, is referred to as the "Common Stock," (ii) the shares of
Common Stock purchasable hereunder or under any other Warrant (as hereinafter
defined) are referred to individually as a "Warrant Share" and collectively as
the "Warrant Shares," (iii) the aggregate purchase price payable for the Warrant
Shares hereunder is referred to as the "Aggregate Warrant Price," (iv) the price
payable for each of the Warrant Shares hereunder is referred to as the "Per
Share Warrant Price," (v) this Warrant, all similar Warrants issued on the date
hereof and all Warrants hereafter issued in exchange or substitution for this
Warrant or such similar Warrants are referred to as the "Warrants", and (vi) the
holder of this Warrant is referred to as the "Holder" and the holder of this
Warrant and all other
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Warrants or Warrant Shares issued upon the exercise of any Warrant are referred
to as the "Holders." The Aggregate Warrant Price is not subject to adjustment.
The Per Share Warrant Price is subject to adjustment as hereinafter provided,
and in the event of any such adjustment, the number of Warrant Shares shall be
adjusted to equal the number determined by dividing the Aggregate Warrant Price
by the Per Share Warrant Price in effect immediately after such adjustment.
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1. Exercise of Warrant. (a) This Warrant may be exercised in
whole at any time or in part from time to time, during the Exercise Period by
the Holder by the surrender of this Warrant (with the subscription form at the
end of this Warrant duly executed) at the address set forth in Section 10(a)
hereof, together with proper payment of the Aggregate Warrant Price, or the
proportionate part thereof if this Warrant is exercised in part. Payment for
Warrant Shares shall be made by certified or official bank check payable to the
order of the Company. If this Warrant is exercised in part, this Warrant must be
exercised for a number of whole shares of Common Stock, and the Holder is
entitled to receive a new Warrant covering the Warrant Shares in respect of
which this Warrant has not been exercised and setting forth the proportionate
part of the Aggregate Warrant Price applicable to such Warrant Shares. Upon such
exercise and surrender of this Warrant, the Company will (i) issue a certificate
or certificates in the name of the Holder for the largest number of whole shares
of Common Stock to which the Holder shall be entitled and, if this Warrant is
exercised in whole, in lieu of any fractional share of Common Stock to which the
Holder shall be entitled, pay to the Holder cash in an amount equal to the fair
value of such fractional share (determined in such reasonable manner as the
Board of Directors of the Company shall determine) and (ii) deliver the other
securities and properties receivable upon the exercise of this Warrant, or the
proportionate part thereof if this Warrant is exercised in part, pursuant to the
provisions of this Warrant.
(b) In lieu of exercising this Warrant in the manner set
forth in Section 1(a) above, this Warrant may be exercised in whole at any time
or in part from time to time during the Exercise Period, by the Holder by
surrendering the Warrant at the address set forth in Section 10(a) hereof,
without payment of any other consideration, commission or remuneration, together
with the subscription form at the end hereof, duly executed. The number of
shares of Common Stock to be issued by the Company shall be calculated using the
following formula:
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X = Y(A-B)
------
A
Where X = the number of shares of Common Stock to be issued
to the Holder
Y = the number of shares of Common Stock purchasable
under this Warrant or, if this Warrant is being
exercised in part, under the portion of the
Warrant being exercised (at the date of the
surrender of this Warrant and the subscription
form)
A = the Market Price (at the date of the surrender of
this Warrant and the subscription form)
B = the Per Share Warrant Price (as adjusted to the
date of the surrender of this Warrant and the
subscription form)
If this Warrant is exercised in part pursuant to this Section 1(b), this Warrant
must be exercised for a number of whole shares of Common Stock, and the Holder
is entitled to receive a new Warrant covering the Warrant Shares in respect of
which this Warrant has not been exercised and setting forth the proportionate
part of the Aggregate Warrant Price applicable to such Warrant Shares. Upon such
exercise and surrender of this Warrant, the Company will (i) issue a certificate
or certificates in the name of the Holder for the largest number of whole shares
of Common Stock to which the Holder shall be entitled and, if this Warrant is
exercised in whole, in lieu of any fractional share of Common Stock to which the
Holder shall be entitled, pay cash equal to the fair value of such fractional
share (determined in such reasonable manner as the Board of Directors of the
Company shall determine) and (ii) deliver the other securities and properties
receivable upon the exercise of this Warrant, or the
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proportionate part thereof if this Warrant is exercised in part, pursuant to the
provisions of this Warrant.
(c) The market price of a share of Common Stock (the
"Market Price") on any date of determination shall be (i) the last reported sale
price per share of the Common Stock on the business day immediately preceding
the date of determination as reported on the Nasdaq National Market (the
"National Market"), or (ii) if there is no such reported sale on the date in
question, the average of the closing bid and asked quotations as so reported on
the National Market, or (iii) if the Common Stock is not then listed on the
National Market, the last reported sale price per share of the Common Stock on
such national securities exchange upon which the Common Stock is then listed, or
(iv) if the Common Stock is not then listed on any national securities exchange,
the average of the closing bid and asked quotations in the over-the-counter
market as reported by Nasdaq, or if not so reported, as reported by the National
Quotations Bureau or a similar organization. In the absence of such quotations,
the Board of Directors of the Company shall determine in good faith the fair
market value per share of the Common Stock, which shall for these purposes be
deemed to be the Market Price, which determination shall be set forth in a
certificate executed by an officer of the Company showing the facts upon which
the Market Price is based.
2. Reservation of Warrant Shares; Listing. The Company agrees
that, prior to the expiration of this Warrant, the Company will at all times (a)
have authorized and in reserve, and will keep available, solely for issuance or
delivery upon the exercise of this Warrant, the shares of Common Stock and other
securities and properties as from time to time shall be receivable upon the
exercise of this Warrant, free and clear of all restrictions on sale or transfer
(other than restrictions imposed hereunder or under applicable Federal and state
securities laws) and free and clear of all preemptive rights and rights of first
refusal and (b) if the Company hereafter lists Common Stock on any national
securities exchange, keep the shares of Common Stock receivable upon the
exercise of this Warrant authorized for listing on such exchange upon notice of
issuance.
3. Protection Against Dilution.
(a) If, at any time or from time to time after the date of
this Warrant, the Company shall issue or distribute
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to the holders of shares of Common Stock (i) securities, other than shares of
Common Stock, or (ii) property, other than cash, without payment therefor, with
respect to Common Stock, then, and in each such case, the Holder, upon the
exercise of this Warrant, shall be entitled to receive the securities and
property which the Holder would hold on the date of such exercise if, on the
date of this Warrant, the Holder had been the holder of record of the number of
shares of Common Stock subscribed for upon such exercise and, during the period
from the date of this Warrant to and including the date of such exercise, had
retained such shares and the securities and properties receivable by the Holder
during such period. Notice of each such distribution shall be forthwith mailed
to the Holder.
(b) In the case the Company shall hereafter (i) pay a
dividend or make a distribution on its capital stock in shares of Common Stock,
(ii) subdivide its outstanding shares of Common Stock into a greater number of
shares, (iii) combine its outstanding shares of Common Stock into a smaller
number of shares or (iv) issue by reclassification of Common Stock any shares of
capital stock of the Company, the Per Share Warrant Price shall be adjusted so
that the Holder upon the exercise hereof shall be entitled to receive the number
of shares of Common Stock or other capital stock of the Company which the Holder
would have owned immediately following such action had such Warrant been
exercised immediately prior thereto. An adjustment made pursuant to this Section
3(b) shall become effective immediately after the record date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or reclassification.
(c) In case of any capital reorganization or
reclassification, or any consolidation or merger to which the Company is a party
other than a merger or consolidation in which the Company is the continuing
corporation, or in case of any sale or conveyance to another entity of the
property of the Company as an entirety or substantially as an entirety, or in
the case of any statutory exchange of securities with another entity (including
any exchange effected in connection with a merger of another corporation with
the Company), the Holder of this Warrant shall have the right thereafter to
receive on the exercise of this Warrant the kind and amount of securities, cash
or other property which the Holder would have owned or have been entitled to
receive immediately after such reorganization,
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reclassification, consolidation, merger, statutory exchange, sale or conveyance
had this Warrant been exercised immediately prior to the effective date of such
reorganization, reclassification, consolidation, merger, statutory exchange,
sale or conveyance and, in any such case, if necessary, appropriate adjustment
shall be made in the application of the provisions set forth in this Section 3
with respect to the rights and interests thereafter of the Holder of this
Warrant to the end that the provisions set forth in this Section 3 shall
thereafter correspondingly be made applicable, as nearly as may reasonably be,
in relation to any shares of stock or other securities or property thereafter
deliverable on the exercise of this Warrant. In the event of a merger described
in Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended, in
which the Company is the surviving corporation, the right to purchase Warrant
Shares pursuant to the Warrants shall terminate on the effective date of such
merger and thereupon the Warrants shall become null and void, but only if the
controlling corporation shall agree to substitute for the Warrants its warrant
which entitles the holder thereof to purchase upon its exercise the kind and
amount of shares and other securities and property which it would have owned or
been entitled to receive had the Warrants been exercised immediately prior to
such merger. The above provisions of this Section 3(c) shall similarly apply to
successive reorganizations, reclassifications, consolidations, mergers,
statutory exchanges, sales or conveyances. The issuer of any shares of stock or
other securities or property thereafter deliverable on the exercise of this
Warrant shall be responsible for all of the agreements and obligations of the
Company hereunder. Notice of any such reorganization, reclassification,
consolidation, merger, statutory exchange, sale or conveyance and of said
provisions so proposed to be made, shall be mailed to the Holders of the
Warrants not less than 30 days prior to such event. A sale of all or
substantially all of the assets of the Company for a consideration consisting
primarily of securities shall be deemed a consolidation or merger for the
foregoing purposes.
(d) In case any event shall occur as to which the other
provisions of this Section 3 are not strictly applicable but as to which the
failure to make any adjustment would not fairly protect the purchase rights
represented by this Warrant in accordance with the essential intent and
principles hereof, then, in each such case, if the Holders of Warrants
representing the right to purchase a majority of the Warrant Shares subject to
all outstanding Warrants and the Company are unable to agree on an
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appropriate adjustment, the Company's independent public accountants shall give
their opinion as to the adjustment, if any, on a basis consistent with the
essential intent and principles established herein, necessary to preserve the
purchase rights represented by the Warrants. Upon receipt of such opinion, the
Company will promptly mail a copy thereof to the Holder of this Warrant. If such
Holders agree with such adjustments they shall notify the Company to make the
adjustments described therein. If the Holders disagree with the adjustments,
such Holders may appoint a firm of independent public accountants of recognized
national standing reasonably acceptable to the Company to give its opinion as to
the adjustment which shall be binding on the Company and the Holders. The fees
and expenses of the independent public accountants shall be borne by the
Company; provided, however, if the Holders appoint accountants due to
disagreement with the Company's accountants, the Holders shall pay the fees and
expenses of such appointed accountants if their calculation of the adjustment
varies by less than 10% from the adjustment calculated by the Company's
accountants.
(e) No adjustment in the Per Share Warrant Price shall be
required unless such adjustment would require an increase or decrease of at
least $0.05 per share of Common Stock; provided, however, that any adjustments
which by reason of this Section 3(e) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment; provided
further, however, that adjustments shall be required and made in accordance with
the provisions of this Section 3 (other than this Section 3(e)) not later than
such time as may be required in order to preserve the tax-free nature of a
distribution to the Holder of this Warrant or Common Stock issuable upon
exercise hereof. All calculations under this Section 3 shall be made to the
nearest cent or to the nearest 1/100th of a share, as the case may be. Anything
in this Section 3 to the contrary notwithstanding, the Company shall be entitled
to make such reductions in the Per Share Warrant Price, in addition to those
required by this Section 3, as it in its discretion shall deem to be advisable
in order that any stock dividend, subdivision of shares or distribution of
rights to purchase stock or securities convertible or exchangeable for stock
hereafter made by the Company to its stockholders shall not be taxable.
(f) Whenever the Per Share Warrant Price is adjusted as
provided in this Section 3 and upon any modification of the rights of a Holder
of Warrants in accordance with this
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Section 3, the Company shall promptly prepare a notice of such adjustment and a
certificate of the Company's chief financial officer setting forth the Per Share
Warrant Price and the number of Warrant Shares after such adjustment or the
effect of such modification, a brief statement of the facts requiring such
adjustment or modification and the manner of computing the same, and cause
copies of such certificate to be mailed to the Holders of the Warrants. In
addition, within thirty (30) days after the end of the Company's fiscal year
next following any such adjustment or modification, the Company shall, at its
own expense, deliver to the Holder of this Warrant a certificate of a firm of
independent public accountants of recognized national standing selected by the
Board of Directors of the Company (who may be the regular auditors of the
Company) setting forth the same information as required by the certificate of
the Company's chief financial officer.
(g) If the Board of Directors of the Company shall (i)
declare any dividend or other distribution with respect to Common Stock, other
than a cash dividend payable otherwise than out of earnings or earned surplus,
(ii) offer to the holders of shares of Common Stock any additional shares of
Common Stock, any securities convertible into or exercisable for shares of
Common Stock or any rights to subscribe thereto or (iii) propose a dissolution,
liquidation or winding up of the Company, the Company shall mail notice thereof
to the Holders of the Warrants not less than 15 days prior to the record date
fixed for determining stockholders entitled to participate in such dividend,
distribution, offer or subscription right or to vote on such dissolution,
liquidation or winding up.
(h) If, as a result of an adjustment made pursuant to this
Section 3, the Holder of any Warrant thereafter surrendered for exercise shall
become entitled to receive shares of two or more classes of capital stock or
shares of Common Stock and other capital stock of the Company, the Board of
Directors of the Company (whose determination shall be conclusive and shall be
described in a written notice to the Holder of any Warrant promptly after such
adjustment) shall determine the allocation of the adjusted Per Share Warrant
Price between or among shares or such classes of capital stock or shares of
Common Stock and other capital stock and any subsequent adjustments made
pursuant to this Section 3 shall apply equally to each such resulting class of
capital stock.
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(i) Upon the expiration of any rights, options, warrants or
conversion privileges, if such shall not have been exercised, the Per Share
Warrant Price shall be readjusted to such Per Share Warrant Price as would have
been obtained had the adjustments made upon the issuance or sale of such rights,
options, warrants or conversion privileges been made upon the basis of the
issuance of only the number of shares of Common Stock theretofore actually
delivered and the total consideration received therefore upon the exercise of
such rights, options, warrants or conversion privileges; provided, however, that
no such readjustment shall have the effect of decreasing the number of Warrant
Shares purchasable upon exercise of the Warrants by an amount in excess of the
amount of the adjustment initially made in respect of the issuance, sale or
grant of such rights, options, warrants or conversion privileges.
(j) Except as provided in this Section 3, no adjustment in
respect of any dividends or distributions out of earnings shall be made during
the term of the Warrants or upon exercise of the Warrants.
4. Fully Paid Stock; Taxes. The Company agrees that the shares
of Common Stock represented by each and every certificate for Warrant Shares
delivered on the exercise of this Warrant shall, at the time of such delivery,
be validly issued and outstanding, fully paid and nonassessable, and not subject
to preemptive rights, rights of first refusal or other contractual rights to
purchase securities of the Company, and the Company will take all such actions
as may be necessary to assure that the par value or stated value, if any, per
share of Common Stock is at all times equal to or less than the then Per Share
Warrant Price. The Company further covenants and agrees that it will pay, when
due and payable, any and all federal and state stamp, original issue or similar
taxes which may be payable in respect of the issuance of any Warrant Share or
certificate therefor.
5. Registration Under Securities Act of 1933.
(a) The Company agrees that if, at any time during the
period commencing on _________, 1998 and ending on _________, 2002, the Holders
of any Warrants and Warrant Shares who or which shall hold, collectively, more
than 50% of the Warrants and Warrant Shares outstanding at such time and not
previously sold pursuant to this Section 5 shall request that the Company file a
registration statement under the Securities Act of
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1933, as amended (the "Act"), covering more than 50% of the Warrant Shares
issued or issuable upon the exercise of the Warrants, and not so previously
sold, the Company will (i) promptly notify each Holder of the Warrants and each
holder of Warrant Shares not so previously sold that such registration statement
will be filed and that the Warrant Shares which are then held, or which may be
acquired upon exercise of the Warrants by the Holder and such Holders, will be
included in such registration statement at the Holder's and such Holders'
request, (ii) cause such registration statement to cover all Warrant Shares
which it has been so requested to include, (iii) use its best efforts to cause
such registration statement to become effective as soon as practicable and (iv)
take all other action necessary under any federal or state law or regulation of
any governmental authority to permit all Warrant Shares which it has been so
requested to include in such registration statement to be sold or otherwise
disposed of, and will maintain such compliance with each such federal and state
law and regulation of any governmental authority for the period, not to exceed
twelve months, necessary for such Holders to effect the proposed sale or other
disposition; provided, however, if any request to register Warrant Shares
pursuant to this Section 5.1 is made within ninety (90) days after effectiveness
of a registration statement of the Company pursuant to which the Company has
offered Common Stock, the Company may delay such request and may treat such
request as if made on the ninetieth (90th) day after such registration
statement's date of effectiveness by providing notice of such delay to the
requesting Holders. The Company shall be required to effect a registration or
qualification pursuant to this Section 5(a) on one occasion only.
(b) The Company agrees that if, at any time and from time
to time during the period commencing __________, 1998 and ending on ___________,
2004, the Board of Directors of the Company shall authorize the filing of a
registration statement (any such registration statement being hereinafter called
a "Subsequent Registration Statement") under the Act (otherwise than pursuant to
Section 5(a) hereof, or other than a registration statement on Form S-8 or other
form which does not permit secondary sales or include substantially the same
information as would be required in a form for the general registration of
securities) in connection with the proposed offer of any of its securities by it
or any of its stockholders, the Company will (i) promptly notify each Holder of
Warrants and Warrant Shares that such Subsequent Registration Statement will
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be filed and that the Warrant Shares which are then held, and which may be
acquired upon the exercise of the Warrants, by the Holder and such Holders,
will, at the Holder's and such Holders' request, be included in such Subsequent
Registration Statement, (ii) upon the written request of a Holder made within 20
days after the giving of such notice by the Company, include in the securities
covered by such Subsequent Registration Statement all Warrant Shares which it
has been so requested to include, (iii) use its best efforts to cause such
Subsequent Registration Statement to become effective as soon as practicable and
(iv) take all other action necessary under any federal or state law or
regulation of any governmental authority to permit all Warrant Shares which it
has been so requested to include in such Subsequent Registration Statement to be
sold or otherwise disposed of, and will maintain such compliance with each such
federal and state law and regulation of any governmental authority for the
period necessary for the Holder and such Holders to effect the proposed sale or
other disposition. The Holders whose Warrant Shares are included in a
Registration Statement pursuant to this Section 5(b) shall provide the Company,
upon request, information with respect to such Holder as is reasonably necessary
to be included in such Subsequent Registration Statement.
(c) Whenever the Company is required pursuant to the
provisions of this Section 5 to include Warrant Shares in a registration
statement or a post-effective amendment to a registration statement, the Company
shall (i) furnish each Holder of any such Warrant Shares and each underwriter of
such Warrant Shares with such copies of the prospectus, including the
preliminary prospectus, conforming to the Act (and such other documents as each
such Holder or each such underwriter may reasonably request) in order to
facilitate the sale or distribution of the Warrant Shares, (ii) use its best
effort to register or qualify such Warrant Shares under the blue sky laws (to
the extent applicable) of such jurisdiction or laws (to the extent applicable)
of such jurisdiction or jurisdictions as the Holders of any such Warrant Shares
and each underwriter of Warrant Shares being sold by such Holders shall
reasonably request and (iii) take such other actions as may be reasonably
necessary or advisable to enable such Holders and such underwriters to
consummate the sale or distribution in such jurisdiction or jurisdictions in
which such Holders shall have reasonably requested that the Warrant Shares be
sold, including
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entering into an underwriting agreement in customary form for transactions of
this nature.
(d) In the event the managing underwriter for any public
offering including Warrant Shares pursuant to Section 5(b) advises the Company
in writing that the inclusion of all or any portion of such Warrant Shares in
the offering would be detrimental to the offering, such Warrant Shares shall not
be included in the Subsequent Registration Statement; provided, however, that
(i) if any securities held by Xxxxx X. Xxxxxx or his immediate family members
(including Xx. Xxxxxx'x wife, parents, siblings, children, spouses and children
of his siblings and children) are to be included in the Subsequent Registration
Statement such securities shall be excluded from the offering before any Warrant
Shares are excluded from the offering and (ii) if any securities held by any
person other than the persons described in 5(d)(i) above with similar
registration rights are to be included in the Subsequent Registration Statement,
the Warrant Shares which have been requested to be so included shall be included
on a pro rata basis.
(e) The Company shall pay all expenses incurred in
connection with any registration statement or other action pursuant to the
provisions of this Section 5, including reasonable out-of-pocket expenses of the
Holder(s) of the Warrant Shares covered by such registration incurred in
connection with such registration or other action, other than (i) underwriting
discounts and applicable transfer taxes relating to the Warrant Shares and (ii)
attorney's fees of the Holders.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
selling holder (including, for purposes of this Section 6, any Holder) of
Warrant Shares and each person who controls any such selling holder within the
meaning of Section 15 of the Act, and each and all of them ("Holder Indemnified
Parties"), from and against any and all losses, claims, damages, liabilities or
actions, joint or several, to which any selling holder of Warrant Shares or they
or any of them may become subject under the Act or otherwise and to reimburse
the persons indemnified above for any legal or other expenses (including the
cost of any investigation and preparation) incurred by them in connection with
any litigation or threatened litigation, whether or not resulting in any
liability, but only insofar as such
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losses, claims, damages, liabilities or actions arise out of, or are based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in any registration statement pursuant to which Warrant Shares were
registered under the Act (hereinafter called a "Registration Statement"), any
preliminary prospectus, the final prospectus or any amendment or supplement
thereto (or in any application or document filed in connection therewith) or
document executed by the Company based upon written information furnished by or
on behalf of the Company filed in any jurisdiction in order to register or
qualify the Warrant Shares under the securities laws thereof or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or (ii) the employment by the Company of
any device, scheme or artifice to defraud, or the engaging by the Company in any
act, practice or course of business which operates or would operate as a fraud
or deceit, or any conspiracy (other than with any Holder Indemnified Party) with
respect thereto, in which the Company shall participate, in connection with the
issuance and sale of any of the Warrant Shares; provided, however, that (i) the
indemnity agreement contained in this Section 6(a) shall not extend to any
selling holder of Warrant Shares in respect of any such losses, claims, damages,
liabilities or actions arising out of, or based upon, any such untrue statement
or alleged untrue statement, or any such omission or alleged omission, if such
statement or omission was based upon and made in conformity with information
furnished in writing to the Company by a selling holder of Warrant Shares
specifically for use in connection with the preparation of such Registration
Statement, any final prospectus, any preliminary prospectus or any such
amendment or supplement thereto. The Company agrees to pay any legal and other
expenses for which it is liable under this Section 6(a) from time to time (but
not more frequently than monthly) within 30 days after its receipt of a xxxx
therefor.
(b) Each selling Holder of Warrant Shares, severally and
not jointly, will indemnify and hold harmless the Company, its directors, its
officers who shall have signed the Registration Statement and each person, if
any, who controls the Company within the meaning of Section 15 of the Act to the
same extent as the foregoing indemnity from the Company, but in each case to the
extent, and only to the extent, that any statement in or omission from or
alleged omission from such Registration Statement, any final prospects, any
preliminary prospectus or any amendment or supplement thereto was made in
reliance upon information furnished in writing to the Company by such selling
holder specifically for use in connection with the preparation of the
Registration Statement, any final prospectus or the preliminary prospectus or
any
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such amendment or supplement thereto; provided, however, that the obligation of
any holder of Warrant Shares to indemnify the Company under the provisions of
this Section 6(b) shall be limited to (X) the product of the Market Price and
the number of the Warrant Shares being sold by the selling holder minus (Y) the
product of the Per Share Warrant Price and the number of such Warrant Shares.
Each selling holder of Warrant Shares agrees to pay any legal and other expenses
for which it is liable under this Section 6(b) from time to time (but not more
frequently than monthly) within 30 days after receipt of a xxxx therefor.
(c) If any action is brought against a person entitled to
indemnification pursuant to the foregoing Section 6(a) or Section 6(b) (an
"Indemnified Party") in respect of which indemnity may by sought against a
person granting indemnification (an "Indemnifying Party") pursuant to such
section, such Indemnified Party shall promptly notify such Indemnifying Party in
writing of the commencement thereof; but the omission so to notify the
Indemnifying Party of any such action shall not release the Indemnifying Party
from any liability it may have to such Indemnified Party otherwise than on
account of the indemnity agreement contained in Section 6(a) or Section 6(b)
hereof. In case any such action is brought against an Indemnified Party and it
notifies an Indemnifying Party of the commencement thereof, the Indemnifying
Party against which a claim is to be made will be entitled to participate
therein at its own expense and, to the extent that it may wish, to assume at its
own expense the defense thereof, with counsel reasonably satisfactory to such
Indemnified Party; provided, however, that if the Indemnified Party shall have
reasonably concluded based upon written advice of counsel that there may be
legal defenses available to it and/or other Indemnified Parties which are
different from or additional to those available to the Indemnifying Party, the
Indemnified Party shall have the right to select separate counsel to assume such
legal defenses and otherwise to participate in the defense of such action on
behalf of such Indemnified Party or Parties. Upon receipt of notice from the
Indemnifying Party to such Indemnified Party of its election so to assume the
defense of such action and approval by the Indemnified Party of counsel, the
Indemnifying Party will not be liable to such Indemnified Party under this
-15-
16
Section 6 for any legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof unless (i) the
Indemnified Party shall have employed such counsel in connection with the
assumption of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the Indemnifying Party
shall not be liable for the expenses of more than one separate counsel), (ii)
the Indemnifying Party shall not have employed counsel reasonably satisfactory
to the Indemnified Party to represent the Indemnified Party within a reasonable
time after notice of commencement of the action or (iii) the Indemnifying Party
has authorized the employment of counsel for the Indemnified Party at the
expense of the Indemnifying Party. An Indemnifying Party shall not be liable for
any settlement of any action or proceeding effected without its written consent
(which consent shall not be unreasonably withheld).
(d) In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in Section 6(a)
or (b) hereof is unavailable in accordance with its terms, the Company and the
selling holder of Warrant Shares shall contribute to the aggregate losses,
claims, damages and liabilities, of the nature contemplated by said indemnity
agreement, incurred by the Company and the selling holder of Warrant Shares, in
such proportions as is appropriate to reflect the relative benefits received by
the Company, on the one hand, and the selling holder of Warrant Shares, on the
other hand, from any offering of the Warrant Shares; provided, however, that if
such allocation is not permitted by applicable law or if the Indemnified Party
failed to give the notice required under Section 6(c), then the relative fault
of the Company and the selling holder of Warrant Shares in connection with the
statements or omissions which result in such losses, claims, damages and
liabilities and other relevant equitable considerations will be considered
together with such relative benefits.
(e) The respective indemnity and contribution agreements by
the Company and the selling Holder of Warrant Shares in Sections 6(a), (b), (c)
and (d) hereof shall remain operative and in full force and effect regardless of
(i) any investigation made by any selling holder of Warrant Shares or by or on
behalf of any person who controls such selling holder or by the Company or any
controlling person of the Company or any director or any officer of the Company,
(ii) the exercise of this
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17
Warrant or (iii) payment for any of the Warrant Shares, and shall survive the
delivery of the Warrant Shares, and any successor of the Company, or of any
selling holder of Warrant Shares, or of any person who controls the Company, or
of any selling holder of Warrant Shares, as the case may be, shall be entitled
to the benefit of such respective indemnity and contribution agreements. The
respective indemnity and contribution agreements by the Company and the selling
holders of Warrant Shares contained in Sections 6(a), (b), (c) and (d) hereof
shall be in addition to any liability which the Company and the selling holders
of Warrant Shares may otherwise have.
7. Limited Transferability.
(a) Neither this Warrant nor the Warrant Shares purchasable
hereunder may not be sold, transferred, assigned, pledged or hypothecated by the
Holder (A) except in compliance with the provisions of the Act and any
applicable state securities laws and (B) until the first anniversary of the date
hereof except (i) to Ladenburg Xxxxxxxx & Co. Inc. or any successor firm or
corporation of Ladenburg Xxxxxxxx & Co. Inc., (ii) to any of the officers of
Ladenburg Xxxxxxxx & Co. Inc., or of any such successor firm or corporation,
(iii) in the case of an individual, pursuant to such individual's last will and
testament or the laws of descent and distribution, (iv) by operation of law or
(v) by reason of a reorganization of the Company.
(b) This Warrant is so transferable only upon the books of the
Company which it shall cause to be maintained for the purpose and the Company
may treat the registered Holder of this Warrant as he or it appears on the
Company's books at any time as the Holder for all purposes. The Holder of the
Warrant shall provide notice to the Company of a sale, transfer, assignment or
hypothecation of the Warrant made in accordance with the terms of this Warrant.
The Company shall permit any Holder of a Warrant or his or its duly authorized
attorney, upon written request during ordinary business hours, to inspect and
copy or make extracts from its books showing the registered holders of Warrants.
All Warrants issued upon the transfer or assignment of this Warrant will be
dated the same date as this Warrant, and all rights of the Holder thereof shall
be identical to those of the Holder of this Warrant.
(c) Except as otherwise provided in this Section 7,
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each certificate for Warrant Shares purchasable hereunder initially issued upon
the exercise of this Warrant shall bear a legend in substantially the following
form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS SPECIFIED IN A CERTAIN WARRANT DATED
_______________, 1997. THE SHARES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE. THE SHARES MAY NOT BE SOLD OR
TRANSFERRED, EXCEPT UPON SUCH REGISTRATION OR UPON DELIVERY TO
XXXXXX INCORPORATED OF AN OPINION OF COUNSEL SATISFACTORY TO
XXXXXX INCORPORATED THAT REGISTRATION IS NOT REQUIRED FOR SUCH
SALE OR TRANSFER. A COPY OF THE FORM OF THE WARRANT IS ON FILE
AT THE OFFICES OF XXXXXX INCORPORATED. THE HOLDER OF THIS
CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE
BOUND BY THE PROVISIONS OF THE WARRANT."
If the initial issuance of such Warrant Shares occurs prior to
_____________, 1998, such certificates shall bear an additional legend in
substantially the following form:
"IN ADDITION, EXCEPT AS PROVIDED IN THE
WARRANT, THE SHARES MAY NOT BE SOLD OR TRANSFERRED UNTIL
_____________, 1998."
(d) Notwithstanding the foregoing provisions of this
Section 7, the restrictions imposed by this Section upon the transferability of
such Warrant Shares and the legend requirements of this Section shall terminate
at such time following _____________, 1998 (A) when such shares shall have been
effectively registered under the Act and disposed of pursuant thereto, or (B)
when in the reasonable opinion of counsel to the Company or the Holder thereof,
such restrictions are not required in order to ensure compliance with the Act.
Whenever the restrictions imposed by this Section 7 shall terminate as
hereinabove provided, the Holder thereof shall be entitled to receive from the
Company, at the Company's expense, a new certificate representing such Warrant
Shares in the name of the same Holder not bearing the restrictive legend set
forth in Section 7(c).
8. Loss, etc., of Warrant. Upon receipt of evidence
satisfactory to the Company of the loss, theft, destruction or
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19
mutilation of this Warrant, and of indemnity reasonably satisfactory to the
Company, if lost, stolen or destroyed, and upon surrender and cancellation of
this Warrant, if mutilated, the Company shall execute and deliver to the Holder
a new Warrant of like date, tenor and denomination.
9. Warrant Holder Not Stockholder. Except as otherwise
provided herein, this Warrant does not confer upon the Holder any right to vote
or to consent to or receive notice as a stockholder of the Company, as such, in
respect of any matters whatsoever, or any other rights or liabilities as a
stockholder, prior to the exercise hereof.
10. Communication. No notice or other communication under this
Warrant shall be effective unless, but any notice or other communication shall
be effective and shall be deemed to have been given if, the same is in writing
and is mailed by first-class mail, postage prepaid, addressed to:
(a) the Company at 0000 Xxxx Xxxxxx Xxxxxx, Xxx
Xxxxx, XX 00000, or such other address as the Company has
designated in writing to the Holder, with a copy to Xxxxxx
Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxxx X. Xxxxx, or
(b) the Holder at Ladenburg Xxxxxxxx & Co. Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other address
as the Holder has designated in writing to the Company.
11. Headings. The headings of this Warrant have been inserted
as a matter of convenience and shall not affect the construction hereof.
12. Applicable Law. This Warrant shall be governed by and
construed in accordance with the law of the State of New York without giving
effect to the principles of conflicts of law thereof.
[Signature Page Follows]
-19-
20
IN WITNESS WHEREOF, Xxxxxx Incorporated has caused this
Warrant to be signed by its [ ] and its corporate seal to be hereunto
affixed and attested by its Secretary this _____ day of ______________, 1997.
XXXXXX INCORPORATED
By: ______________________________
Name:
Title:
ATTEST:
_______________________________
Name:
Title:
[Corporate Seal]
-20-
21
ASSIGNMENT
FOR VALUE RECEIVED __________________________ hereby sells,
assigns and transfers unto _______________________________ the foregoing Warrant
and all rights evidenced thereby, and does irrevocably constitute and appoint
_____________________________, attorney, to transfer said Warrant on the books
of Xxxxxx Incorporated
Dated: ________________ Signature: _____________________________
Address: _______________________________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED __________________________ hereby sells,
assigns and transfers unto __________________________ the right to purchase
_____________ shares of Common Stock of Xxxxxx Incorporated covered by the
foregoing Warrant, and a proportionate part of said Warrant and the rights
evidenced thereby, and does irrevocably constitute and appoint
__________________________, attorney, to transfer that part of said Warrant on
the books of Xxxxxx Incorporated
Dated: ________________ Signature: _____________________________
Address: _______________________________
22
SUBSCRIPTION FORM
The undersigned hereby irrevocably elects to exercise the
right of purchase represented by the attached Warrant for, and to purchase
thereunder, _____________ shares of Common Stock of Xxxxxx Incorporated, as
provided for in Section 1 thereof.
The undersigned herewith makes payment for such shares in full
at the price per share provided by such Warrant in the following manner (please
check the type or types of payment and indicate the portion of the aggregate
payment to be paid by each type of payment):
____ Exercise for cash as provided in Section 1(a) of such
Warrant.
____ Exercise by surrender of such Warrant (or a portion
thereof) in accordance with Section 1(b) of such Warrant.
Please issue a certificate or certificates for such shares in
the name of, and pay any cash for any fractional share to:
Name ___________________________________
(Please Print Name, Address and Social Security No.
or Taxpayer Identification No.)
Address ________________________________
________________________________
Social Security No. or
Taxpayer Identification No._____________
Signature ______________________________
NOTE: The above signature should correspond
exactly with the name on the first page of
such Warrant or with the name of the
23
assignee appearing in the assignment form
attached to the Warrant.
And if such number of shares shall not be all the shares
purchasable under the attached Warrant, a new Warrant is to be issued in the
name of said undersigned for the balance remaining of the shares purchasable
thereunder and delivered to the address set forth above.
24
THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND NEITHER IT NOR THE SHARES THAT
MAY BE PURCHASED HEREUNDER HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THIS WARRANT AND SUCH
SHARES MAY NOT BE SOLD OR TRANSFERRED, EXCEPT UPON SUCH REGISTRATION OR UPON
DELIVERY TO XXXXXX INCORPORATED OF AN OPINION OF COUNSEL SATISFACTORY TO XXXXXX
INCORPORATED THAT REGISTRATION IS NOT REQUIRED FOR SUCH SALE OR TRANSFER. IN
ADDITION, EXCEPT AS PROVIDED HEREIN, THIS WARRANT AND SUCH SHARES MAY NOT BE
SOLD OR TRANSFERRED UNTIL _________, 1998.
XXXXXX INCORPORATED
Warrant for the Purchase of Shares of Common Stock
No. __ 75,883 Shares
FOR VALUE RECEIVED, Xxxxxx Incorporated, a Nevada corporation
(the "Company"), hereby certifies that Xxxxxx, Xxxxxxxx & Company Incorporated
or its permitted assigns, is entitled to purchase from the Company, at any time
or from time to time commencing on _______________, 1997 and prior to 5:00 P.M.,
New York City time, on _______________, 2002 (the "Exercise Period"),
Seventy-Five Thousand Eight Hundred Eighty-Three (75,883) fully paid and
non-assessable shares of the common stock, $.001 par value per share, of the
Company for an aggregate purchase price of $____ (computed on the basis of
$____ per share). Hereinafter, (i) said common stock, together with any other
equity securities which may be issued by the Company with respect thereto or in
substitution therefor, is referred to as the "Common Stock," (ii) the shares of
Common Stock purchasable hereunder or under any other Warrant (as hereinafter
defined) are referred to individually as a "Warrant Share" and collectively as
the "Warrant Shares," (iii) the aggregate purchase price payable for the Warrant
Shares hereunder is referred to as the "Aggregate Warrant Price," (iv) the price
payable for each of the Warrant Shares hereunder is referred to as the "Per
Share Warrant Price," (v) this Warrant, all similar Warrants issued on the date
hereof and all Warrants hereafter issued in exchange or substitution for this
Warrant or such similar Warrants are referred to as the "Warrants", and (vi) the
holder of this Warrant is referred to as the "Holder" and the holder of this
Warrant and all other Warrants or Warrant Shares issued upon the exercise of any
Warrant are referred to as the "Holders." The Aggregate Warrant Price is not
subject to adjustment. The Per Share Warrant Price is subject to adjustment as
hereinafter provided, and in the event of any such adjustment, the number of
Warrant Shares shall
25
be adjusted to equal the number determined by dividing the Aggregate Warrant
Price by the Per Share Warrant Price in effect immediately after such
adjustment.
-2-
26
1. Exercise of Warrant. (a) This Warrant may be exercised in
whole at any time or in part from time to time, during the Exercise Period by
the Holder by the surrender of this Warrant (with the subscription form at the
end of this Warrant duly executed) at the address set forth in Section 10(a)
hereof, together with proper payment of the Aggregate Warrant Price, or the
proportionate part thereof if this Warrant is exercised in part. Payment for
Warrant Shares shall be made by certified or official bank check payable to the
order of the Company. If this Warrant is exercised in part, this Warrant must be
exercised for a number of whole shares of Common Stock, and the Holder is
entitled to receive a new Warrant covering the Warrant Shares in respect of
which this Warrant has not been exercised and setting forth the proportionate
part of the Aggregate Warrant Price applicable to such Warrant Shares. Upon such
exercise and surrender of this Warrant, the Company will (i) issue a certificate
or certificates in the name of the Holder for the largest number of whole shares
of Common Stock to which the Holder shall be entitled and, if this Warrant is
exercised in whole, in lieu of any fractional share of Common Stock to which the
Holder shall be entitled, pay to the Holder cash in an amount equal to the fair
value of such fractional share (determined in such reasonable manner as the
Board of Directors of the Company shall determine) and (ii) deliver the other
securities and properties receivable upon the exercise of this Warrant, or the
proportionate part thereof if this Warrant is exercised in part, pursuant to the
provisions of this Warrant.
(b) In lieu of exercising this Warrant in the manner set
forth in Section 1(a) above, this Warrant may be exercised in whole at any time
or in part from time to time during the Exercise Period, by the Holder by
surrendering the Warrant at the address set forth in Section 10(a) hereof,
without payment of any other consideration, commission or remuneration, together
with the subscription form at the end hereof, duly executed. The number of
shares of Common Stock to be issued by the Company shall be calculated using the
following formula:
-3-
27
X = Y(A-B)
------
A
Where X = the number of shares of Common Stock to be issued
to the Holder
Y = the number of shares of Common Stock purchasable
under this Warrant or, if this Warrant is being
exercised in part, under the portion of the Warrant
being exercised (at the date of the surrender of
this Warrant and the subscription form)
A = the Market Price (at the date of the surrender of
this Warrant and the subscription form)
B = the Per Share Warrant Price (as adjusted to the
date of the surrender of this Warrant and the
subscription form)
If this Warrant is exercised in part pursuant to this Section 1(b), this Warrant
must be exercised for a number of whole shares of Common Stock, and the Holder
is entitled to receive a new Warrant covering the Warrant Shares in respect of
which this Warrant has not been exercised and setting forth the proportionate
part of the Aggregate Warrant Price applicable to such Warrant Shares. Upon such
exercise and surrender of this Warrant, the Company will (i) issue a certificate
or certificates in the name of the Holder for the largest number of whole shares
of Common Stock to which the Holder shall be entitled and, if this Warrant is
exercised in whole, in lieu of any fractional share of Common Stock to which the
Holder shall be entitled, pay cash equal to the fair value of such fractional
share (determined in such reasonable manner as the Board of Directors of the
Company shall determine) and (ii) deliver the other securities and properties
receivable upon the exercise of this Warrant, or the proportionate part thereof
if this Warrant is exercised in part, pursuant to the provisions of this
Warrant.
(c) The market price of a share of Common Stock (the
"Market Price") on any date of determination shall be (i) the last reported sale
price per share of the Common Stock on the
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28
business day immediately preceding the date of determination as reported on the
Nasdaq National Market (the "National Market"), or (ii) if there is no such
reported sale on the date in question, the average of the closing bid and asked
quotations as so reported on the National Market, or (iii) if the Common Stock
is not then listed on the National Market, the last reported sale price per
share of the Common Stock on such national securities exchange upon which the
Common Stock is then listed, or (iv) if the Common Stock is not then listed on
any national securities exchange, the average of the closing bid and asked
quotations in the over-the-counter market as reported by Nasdaq, or if not so
reported, as reported by the National Quotations Bureau or a similar
organization. In the absence of such quotations, the Board of Directors of the
Company shall determine in good faith the fair market value per share of the
Common Stock, which shall for these purposes be deemed to be the Market Price,
which determination shall be set forth in a certificate executed by an officer
of the Company showing the facts upon which the Market Price is based.
2. Reservation of Warrant Shares; Listing. The Company agrees
that, prior to the expiration of this Warrant, the Company will at all times (a)
have authorized and in reserve, and will keep available, solely for issuance or
delivery upon the exercise of this Warrant, the shares of Common Stock and other
securities and properties as from time to time shall be receivable upon the
exercise of this Warrant, free and clear of all restrictions on sale or transfer
(other than restrictions imposed hereunder or under applicable Federal and state
securities laws) and free and clear of all preemptive rights and rights of first
refusal and (b) if the Company hereafter lists Common Stock on any national
securities exchange, keep the shares of Common Stock receivable upon the
exercise of this Warrant authorized for listing on such exchange upon notice of
issuance.
3. Protection Against Dilution.
(a) If, at any time or from time to time after the date of
this Warrant, the Company shall issue or distribute to the holders of shares of
Common Stock (i) securities, other than shares of Common Stock, or (ii)
property, other than cash, without payment therefor, with respect to Common
Stock, then, and in each such case, the Holder, upon the exercise of this
Warrant, shall be entitled to receive the securities and property which the
Holder would hold on the date of such exercise if, on the date of this Warrant,
the Holder had been the holder of record of
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29
the number of shares of Common Stock subscribed for upon such exercise and,
during the period from the date of this Warrant to and including the date of
such exercise, had retained such shares and the securities and properties
receivable by the Holder during such period. Notice of each such distribution
shall be forthwith mailed to the Holder.
(b) In the case the Company shall hereafter (i) pay a
dividend or make a distribution on its capital stock in shares of Common Stock,
(ii) subdivide its outstanding shares of Common Stock into a greater number of
shares, (iii) combine its outstanding shares of Common Stock into a smaller
number of shares or (iv) issue by reclassification of Common Stock any shares of
capital stock of the Company, the Per Share Warrant Price shall be adjusted so
that the Holder upon the exercise hereof shall be entitled to receive the number
of shares of Common Stock or other capital stock of the Company which the Holder
would have owned immediately following such action had such Warrant been
exercised immediately prior thereto. An adjustment made pursuant to this Section
3(b) shall become effective immediately after the record date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or reclassification.
(c) In case of any capital reorganization or
reclassification, or any consolidation or merger to which the Company is a party
other than a merger or consolidation in which the Company is the continuing
corporation, or in case of any sale or conveyance to another entity of the
property of the Company as an entirety or substantially as an entirety, or in
the case of any statutory exchange of securities with another entity (including
any exchange effected in connection with a merger of another corporation with
the Company), the Holder of this Warrant shall have the right thereafter to
receive on the exercise of this Warrant the kind and amount of securities, cash
or other property which the Holder would have owned or have been entitled to
receive immediately after such reorganization, reclassification, consolidation,
merger, statutory exchange, sale or conveyance had this Warrant been exercised
immediately prior to the effective date of such reorganization,
reclassification, consolidation, merger, statutory exchange, sale or conveyance
and, in any such case, if necessary, appropriate adjustment shall be made in the
application of the provisions set forth in this Section 3 with respect to the
rights and interests thereafter of the Holder of this Warrant to the end that
the provisions set forth in this Section 3 shall thereafter correspondingly be
made
-6-
30
applicable, as nearly as may reasonably be, in relation to any shares of stock
or other securities or property thereafter deliverable on the exercise of this
Warrant. In the event of a merger described in Section 368(a)(2)(E) of the
Internal Revenue Code of 1986, as amended, in which the Company is the surviving
corporation, the right to purchase Warrant Shares pursuant to the Warrants shall
terminate on the effective date of such merger and thereupon the Warrants shall
become null and void, but only if the controlling corporation shall agree to
substitute for the Warrants its warrant which entitles the holder thereof to
purchase upon its exercise the kind and amount of shares and other securities
and property which it would have owned or been entitled to receive had the
Warrants been exercised immediately prior to such merger. The above provisions
of this Section 3(c) shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers, statutory exchanges, sales or
conveyances. The issuer of any shares of stock or other securities or property
thereafter deliverable on the exercise of this Warrant shall be responsible for
all of the agreements and obligations of the Company hereunder. Notice of any
such reorganization, reclassification, consolidation, merger, statutory
exchange, sale or conveyance and of said provisions so proposed to be made,
shall be mailed to the Holders of the Warrants not less than 30 days prior to
such event. A sale of all or substantially all of the assets of the Company for
a consideration consisting primarily of securities shall be deemed a
consolidation or merger for the foregoing purposes.
(d) In case any event shall occur as to which the other
provisions of this Section 3 are not strictly applicable but as to which the
failure to make any adjustment would not fairly protect the purchase rights
represented by this Warrant in accordance with the essential intent and
principles hereof, then, in each such case, if the Holders of Warrants
representing the right to purchase a majority of the Warrant Shares subject to
all outstanding Warrants and the Company are unable to agree on an appropriate
adjustment, the Company's independent public accountants shall give their
opinion as to the adjustment, if any, on a basis consistent with the essential
intent and principles established herein, necessary to preserve the purchase
rights represented by the Warrants. Upon receipt of such opinion, the Company
will promptly mail a copy thereof to the Holder of this Warrant. If such Holders
agree with such adjustments they shall notify the Company to make the
adjustments described therein. If the Holders disagree with the adjustments,
such Holders may appoint a firm of independent public accountants
-7-
31
of recognized national standing reasonably acceptable to the Company to give its
opinion as to the adjustment which shall be binding on the Company and the
Holders. The fees and expenses of the independent public accountants shall be
borne by the Company; provided, however, if the Holders appoint accountants due
to disagreement with the Company's accountants, the Holders shall pay the fees
and expenses of such appointed accountants if their calculation of the
adjustment varies by less than 10% from the adjustment calculated by the
Company's accountants.
(e) No adjustment in the Per Share Warrant Price shall be
required unless such adjustment would require an increase or decrease of at
least $0.05 per share of Common Stock; provided, however, that any adjustments
which by reason of this Section 3(e) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment; provided
further, however, that adjustments shall be required and made in accordance with
the provisions of this Section 3 (other than this Section 3(e)) not later than
such time as may be required in order to preserve the tax-free nature of a
distribution to the Holder of this Warrant or Common Stock issuable upon
exercise hereof. All calculations under this Section 3 shall be made to the
nearest cent or to the nearest 1/100th of a share, as the case may be. Anything
in this Section 3 to the contrary notwithstanding, the Company shall be entitled
to make such reductions in the Per Share Warrant Price, in addition to those
required by this Section 3, as it in its discretion shall deem to be advisable
in order that any stock dividend, subdivision of shares or distribution of
rights to purchase stock or securities convertible or exchangeable for stock
hereafter made by the Company to its stockholders shall not be taxable.
(f) Whenever the Per Share Warrant Price is adjusted as
provided in this Section 3 and upon any modification of the rights of a Holder
of Warrants in accordance with this Section 3, the Company shall promptly
prepare a notice of such adjustment and a certificate of the Company's chief
financial officer setting forth the Per Share Warrant Price and the number of
Warrant Shares after such adjustment or the effect of such modification, a brief
statement of the facts requiring such adjustment or modification and the manner
of computing the same, and cause copies of such certificate to be mailed to the
Holders of the Warrants. In addition, within thirty (30) days after the end of
the Company's fiscal year next following any such adjustment or modification,
the Company shall, at its own expense, deliver to the Holder of this Warrant a
certificate of a firm of independent public accountants of recognized national
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32
standing selected by the Board of Directors of the Company (who may be the
regular auditors of the Company) setting forth the same information as required
by the certificate of the Company's chief financial officer.
(g) If the Board of Directors of the Company shall (i)
declare any dividend or other distribution with respect to Common Stock, other
than a cash dividend payable otherwise than out of earnings or earned surplus,
(ii) offer to the holders of shares of Common Stock any additional shares of
Common Stock, any securities convertible into or exercisable for shares of
Common Stock or any rights to subscribe thereto or (iii) propose a dissolution,
liquidation or winding up of the Company, the Company shall mail notice thereof
to the Holders of the Warrants not less than 15 days prior to the record date
fixed for determining stockholders entitled to participate in such dividend,
distribution, offer or subscription right or to vote on such dissolution,
liquidation or winding up.
(h) If, as a result of an adjustment made pursuant to this
Section 3, the Holder of any Warrant thereafter surrendered for exercise shall
become entitled to receive shares of two or more classes of capital stock or
shares of Common Stock and other capital stock of the Company, the Board of
Directors of the Company (whose determination shall be conclusive and shall be
described in a written notice to the Holder of any Warrant promptly after such
adjustment) shall determine the allocation of the adjusted Per Share Warrant
Price between or among shares or such classes of capital stock or shares of
Common Stock and other capital stock and any subsequent adjustments made
pursuant to this Section 3 shall apply equally to each such resulting class of
capital stock.
(i) Upon the expiration of any rights,
options, warrants or conversion privileges, if
such shall not have been exercised, the Per Share
Warrant Price shall be readjusted to such Per
Share Warrant Price as would have been obtained
had the adjustments made upon the issuance or sale
of such rights, options, warrants or conversion
privileges been made upon the basis of the
issuance of only the number of shares of Common
Stock theretofore actually delivered and the total
consideration received therefore upon the exercise
of such rights, options, warrants or conversion
privileges; provided, however,
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33
that no such readjustment shall have the effect of
decreasing the number of Warrant Shares
purchasable upon exercise of the Warrants by an
amount in excess of the amount of the adjustment
initially made in respect of the issuance, sale or
grant of such rights, options, warrants or
conversion privileges.
(j) Except as provided in this Section 3, no
adjustment in respect of any dividends or
distributions out of earnings shall be made during
the term of the Warrants or upon exercise of the
Warrants.
4. Fully Paid Stock; Taxes. The Company agrees that the shares of Common Stock
represented by each and every certificate for Warrant Shares delivered on the
exercise of this Warrant shall, at the time of such delivery, be validly issued
and outstanding, fully paid and nonassessable, and not subject to preemptive
rights, rights of first refusal or other contractual rights to purchase
securities of the Company, and the Company will take all such actions as may be
necessary to assure that the par value or stated value, if any, per share of
Common Stock is at all times equal to or less than the then Per Share Warrant
Price. The Company further covenants and agrees that it will pay, when due and
payable, any and all federal and state stamp, original issue or similar taxes
which may be payable in respect of the issuance of any Warrant Share or
certificate therefor.
5. Registration Under Securities Act of 1933.
(a) The Company agrees that if, at any time
during the period commencing on _________, 1998
and ending on _________, 2002, the Holders of any
Warrants and Warrant Shares who or which shall
hold, collectively, more than 50% of the Warrants
and Warrant Shares outstanding at such time and
not previously sold pursuant to this Section 5
shall request that the Company file a registration
statement under the Securities Act of 1933, as
amended (the "Act"), covering more than 50% of the
Warrant Shares issued or issuable upon the
exercise of the Warrants,
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34
and not so previously sold, the Company will (i)
promptly notify each Holder of the Warrants and
each holder of Warrant Shares not so previously
sold that such registration statement will be
filed and that the Warrant Shares which are then
held, or which may be acquired upon exercise of
the Warrants by the Holder and such Holders, will
be included in such registration statement at the
Holder's and such Holders' request, (ii) cause
such registration statement to cover all Warrant
Shares which it has been so requested to include,
(iii) use its best efforts to cause such
registration statement to become effective as soon
as practicable and (iv) take all other action
necessary under any federal or state law or
regulation of any governmental authority to permit
all Warrant Shares which it has been so requested
to include in such registration statement to be
sold or otherwise disposed of, and will maintain
such compliance with each such federal and state
law and regulation of any governmental authority
for the period, not to exceed twelve months,
necessary for such Holders to effect the proposed
sale or other disposition; provided, however, if
any request to register Warrant Shares pursuant to
this Section 5.1 is made within ninety (90) days
after effectiveness of a registration statement of
the Company pursuant to which the Company has
offered Common Stock, the Company may delay such
request and may treat such request as if made on
the ninetieth (90th) day after such registration
statement's date of effectiveness by providing
notice of such delay to the requesting Holders.
The Company shall be required to effect a
registration or qualification pursuant to this
Section 5(a) on one occasion only.
(b) The Company agrees that if, at any time
and from time to time during the period commencing
__________, 1998 and ending on
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35
___________, 2004, the Board of Directors of the
Company shall authorize the filing of a
registration statement (any such registration
statement being hereinafter called a "Subsequent
Registration Statement") under the Act (otherwise
than pursuant to Section 5(a) hereof, or other
than a registration statement on Form S-8 or other
form which does not permit secondary sales or
include substantially the same information as
would be required in a form for the general
registration of securities) in connection with the
proposed offer of any of its securities by it or
any of its stockholders, the Company will (i)
promptly notify each Holder of Warrants and
Warrant Shares that such Subsequent Registration
Statement will be filed and that the Warrant
Shares which are then held, and which may be
acquired upon the exercise of the Warrants, by the
Holder and such Holders, will, at the Holder's and
such Holders' request, be included in such
Subsequent Registration Statement, (ii) upon the
written request of a Holder made within 20 days
after the giving of such notice by the Company,
include in the securities covered by such
Subsequent Registration Statement all Warrant
Shares which it has been so requested to include,
(iii) use its best efforts to cause such
Subsequent Registration Statement to become
effective as soon as practicable and (iv) take all
other action necessary under any federal or state
law or regulation of any governmental authority to
permit all Warrant Shares which it has been so
requested to include in such Subsequent
Registration Statement to be sold or otherwise
disposed of, and will maintain such compliance
with each such federal and state law and
regulation of any governmental authority for the
period necessary for the Holder and such Holders
to effect the proposed sale or other disposition.
The Holders whose Warrant Shares are included in a
Registration Statement pursuant to this
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36
Section 5(b) shall provide the Company, upon
request, information with respect to such Holder
as is reasonably necessary to be included in such
Subsequent Registration Statement.
(c) Whenever the Company is required pursuant
to the provisions of this Section 5 to include
Warrant Shares in a registration statement or a
post-effective amendment to a registration
statement, the Company shall (i) furnish each
Holder of any such Warrant Shares and each
underwriter of such Warrant Shares with such
copies of the prospectus, including the
preliminary prospectus, conforming to the Act (and
such other documents as each such Holder or each
such underwriter may reasonably request) in order
to facilitate the sale or distribution of the
Warrant Shares, (ii) use its best effort to
register or qualify such Warrant Shares under the
blue sky laws (to the extent applicable) of such
jurisdiction or laws (to the extent applicable) of
such jurisdiction or jurisdictions as the Holders
of any such Warrant Shares and each underwriter of
Warrant Shares being sold by such Holders shall
reasonably request and (iii) take such other
actions as may be reasonably necessary or
advisable to enable such Holders and such
underwriters to consummate the sale or
distribution in such jurisdiction or jurisdictions
in which such Holders shall have reasonably
requested that the Warrant Shares be sold,
including entering into an underwriting agreement
in customary form for transactions of this nature.
(d) In the event the managing underwriter for any public
offering including Warrant Shares pursuant to Section 5(b) advises the Company
in writing that the inclusion of all or any portion of such Warrant Shares in
the offering would be detrimental to the offering, such Warrant Shares shall not
be included in the Subsequent Registration Statement; provided, however, that
(i) if any securities held by Xxxxx X. Xxxxxx or his immediate family members
(including Xx. Xxxxxx'x wife,
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37
parents, siblings, children, spouses and children of his siblings and children)
are to be included in the Subsequent Registration Statement such securities
shall be excluded from the offering before any Warrant Shares are excluded from
the offering and (ii) if any securities held by any person other than the
persons described in 5(d)(i) above with similar registration rights are to be
included in the Subsequent Registration Statement, the Warrant Shares which have
been requested to be so included shall be included on a pro rata basis.
(e) The Company shall pay all expenses
incurred in connection with any registration
statement or other action pursuant to the
provisions of this Section 5, including reasonable
out-of-pocket expenses of the Holder(s) of the
Warrant Shares covered by such registration
incurred in connection with such registration or
other action, other than (i) underwriting
discounts and applicable transfer taxes relating
to the Warrant Shares and (ii) attorney's fees of
the Holders.
6. Indemnification.
(a) The Company agrees to indemnify and hold
harmless each selling holder (including, for
purposes of this Section 6, any Holder) of Warrant
Shares and each person who controls any such
selling holder within the meaning of Section 15 of
the Act, and each and all of them ("Holder
Indemnified Parties"), from and against any and
all losses, claims, damages, liabilities or
actions, joint or several, to which any selling
holder of Warrant Shares or they or any of them
may become subject under the Act or otherwise and
to reimburse the persons indemnified above for any
legal or other expenses (including the cost of any
investigation and preparation) incurred by them in
connection with any litigation or threatened
litigation, whether or not resulting in any
liability, but only insofar as such losses,
claims, damages, liabilities or actions arise out
of, or are based upon,
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38
(i) any untrue statement or alleged untrue
statement of a material fact contained in any
registration statement pursuant to which Warrant
Shares were registered under the Act (hereinafter
called a "Registration Statement"), any
preliminary prospectus, the final prospectus or
any amendment or supplement thereto (or in any
application or document filed in connection
therewith) or document executed by the Company
based upon written information furnished by or on
behalf of the Company filed in any jurisdiction in
order to register or qualify the Warrant Shares
under the securities laws thereof or the omission
or alleged omission to state therein a material
fact required to be stated therein or necessary to
make the statements therein, in light of the
circumstances under which they were made, not
misleading, or (ii) the employment by the Company
of any device, scheme or artifice to defraud, or
the engaging by the Company in any act, practice
or course of business which operates or would
operate as a fraud or deceit, or any conspiracy
(other than with any Holder Indemnified Party)
with respect thereto, in which the Company shall
participate, in connection with the issuance and
sale of any of the Warrant Shares; provided,
however, that (i) the indemnity agreement
contained in this Section 6(a) shall not extend to
any selling holder of Warrant Shares in respect of
any such losses, claims, damages, liabilities or
actions arising out of, or based upon, any such
untrue statement or alleged untrue statement, or
any such omission or alleged omission, if such
statement or omission was based upon and made in
conformity with information furnished in writing
to the Company by a selling holder of Warrant
Shares specifically for use in connection with the
preparation of such Registration Statement, any
final prospectus, any preliminary prospectus or
any such amendment or supplement thereto. The
Company
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39
agrees to pay any legal and other expenses for
which it is liable under this Section 6(a) from
time to time (but not more frequently than
monthly) within 30 days after its receipt of a
xxxx therefor.
(b) Each selling Holder of Warrant Shares,
severally and not jointly, will indemnify and hold
harmless the Company, its directors, its officers
who shall have signed the Registration Statement
and each person, if any, who controls the Company
within the meaning of Section 15 of the Act to the
same extent as the foregoing indemnity from the
Company, but in each case to the extent, and only
to the extent, that any statement in or omission
from or alleged omission from such Registration
Statement, any final prospects, any preliminary
prospectus or any amendment or supplement thereto
was made in reliance upon information furnished in
writing to the Company by such selling holder
specifically for use in connection with the
preparation of the Registration Statement, any
final prospectus or the preliminary prospectus or
any such amendment or supplement thereto;
provided, however, that the obligation of any
holder of Warrant Shares to indemnify the Company
under the provisions of this Section 6(b) shall be
limited to (X) the product of the Market Price and
the number of the Warrant Shares being sold by the
selling holder minus (Y) the product of the Per
Share Warrant Price and the number of such Warrant
Shares. Each selling holder of Warrant Shares
agrees to pay any legal and other expenses for
which it is liable under this Section 6(b) from
time to time (but not more frequently than
monthly) within 30 days after receipt of a xxxx
therefor.
(c) If any action is brought against a person
entitled to indemnification pursuant to the
foregoing Section 6(a) or Section 6(b) (an
"Indemnified Party") in respect of which
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40
indemnity may by sought against a person granting
indemnification (an "Indemnifying Party") pursuant
to such section, such Indemnified Party shall
promptly notify such Indemnifying Party in writing
of the commencement thereof; but the omission so
to notify the Indemnifying Party of any such
action shall not release the Indemnifying Party
from any liability it may have to such Indemnified
Party otherwise than on account of the indemnity
agreement contained in Section 6(a) or Section
6(b) hereof. In case any such action is brought
against an Indemnified Party and it notifies an
Indemnifying Party of the commencement thereof,
the Indemnifying Party against which a claim is to
be made will be entitled to participate therein at
its own expense and, to the extent that it may
wish, to assume at its own expense the defense
thereof, with counsel reasonably satisfactory to
such Indemnified Party; provided, however, that if
the Indemnified Party shall have reasonably
concluded based upon written advice of counsel
that there may be legal defenses available to it
and/or other Indemnified Parties which are
different from or additional to those available to
the Indemnifying Party, the Indemnified Party
shall have the right to select separate counsel to
assume such legal defenses and otherwise to
participate in the defense of such action on
behalf of such Indemnified Party or Parties. Upon
receipt of notice from the Indemnifying Party to
such Indemnified Party of its election so to
assume the defense of such action and approval by
the Indemnified Party of counsel, the Indemnifying
Party will not be liable to such Indemnified Party
under this Section 6 for any legal or other
expenses subsequently incurred by such Indemnified
Party in connection with the defense thereof
unless (i) the Indemnified Party shall have
employed such counsel in connection with the
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41
assumption of legal defenses in accordance with
the proviso to the next preceding sentence (it
being understood, however, that the Indemnifying
Party shall not be liable for the expenses of more
than one separate counsel), (ii) the Indemnifying
Party shall not have employed counsel reasonably
satisfactory to the Indemnified Party to represent
the Indemnified Party within a reasonable time
after notice of commencement of the action or
(iii) the Indemnifying Party has authorized the
employment of counsel for the Indemnified Party at
the expense of the Indemnifying Party. An
Indemnifying Party shall not be liable for any
settlement of any action or proceeding effected
without its written consent (which consent shall
not be unreasonably withheld).
(d) In order to provide for just and
equitable contribution in circumstances in which
the indemnity agreement provided for in Section
6(a) or (b) hereof is unavailable in accordance
with its terms, the Company and the selling holder
of Warrant Shares shall contribute to the
aggregate losses, claims, damages and liabilities,
of the nature contemplated by said indemnity
agreement, incurred by the Company and the selling
holder of Warrant Shares, in such proportions as
is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the
selling holder of Warrant Shares, on the other
hand, from any offering of the Warrant Shares;
provided, however, that if such allocation is not
permitted by applicable law or if the Indemnified
Party failed to give the notice required under
Section 6(c), then the relative fault of the
Company and the selling holder of Warrant Shares
in connection with the statements or omissions
which result in such losses, claims, damages and
liabilities and other relevant equitable
considerations will be
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42
considered together with such relative benefits.
(e) The respective indemnity and contribution
agreements by the Company and the selling Holder
of Warrant Shares in Sections 6(a), (b), (c) and
(d) hereof shall remain operative and in full
force and effect regardless of (i) any
investigation made by any selling holder of
Warrant Shares or by or on behalf of any person
who controls such selling holder or by the Company
or any controlling person of the Company or any
director or any officer of the Company, (ii) the
exercise of this Warrant or (iii) payment for any
of the Warrant Shares, and shall survive the
delivery of the Warrant Shares, and any successor
of the Company, or of any selling holder of
Warrant Shares, or of any person who controls the
Company, or of any selling holder of Warrant
Shares, as the case may be, shall be entitled to
the benefit of such respective indemnity and
contribution agreements. The respective indemnity
and contribution agreements by the Company and the
selling holders of Warrant Shares contained in
Sections 6(a), (b), (c) and (d) hereof shall be in
addition to any liability which the Company and
the selling holders of Warrant Shares may
otherwise have.
7. Limited Transferability.
(a) Neither this Warrant nor the Warrant Shares purchasable hereunder may not be
sold, transferred, assigned, pledged or hypothecated by the Holder (A) except in
compliance with the provisions of the Act and any applicable state securities
laws and (B) until the first anniversary of the date hereof except (i) to
Xxxxxx, Xxxxxxxx & Company Incorporated or any successor firm or corporation of
Xxxxxx, Xxxxxxxx & Company Incorporated, (ii) to any of the officers of Xxxxxx,
Xxxxxxxx & Company Incorporated, or of any such successor firm or corporation,
(iii) in the case of an individual, pursuant to such individual's last will and
testament or the laws of descent and distribution, (iv)
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43
by operation of law or (v) by reason of a reorganization of the Company.
(b) This Warrant is so transferable only upon the books of the Company which it
shall cause to be maintained for the purpose and the Company may treat the
registered Holder of this Warrant as he or it appears on the Company's books at
any time as the Holder for all purposes. The Holder of the Warrant shall provide
notice to the Company of a sale, transfer, assignment or hypothecation of the
Warrant made in accordance with the terms of this Warrant. The Company shall
permit any Holder of a Warrant or his or its duly authorized attorney, upon
written request during ordinary business hours, to inspect and copy or make
extracts from its books showing the registered holders of Warrants. All Warrants
issued upon the transfer or assignment of this Warrant will be dated the same
date as this Warrant, and all rights of the Holder thereof shall be identical to
those of the Holder of this Warrant.
(c) Except as otherwise provided in this Section 7, each certificate for Warrant
Shares purchasable hereunder initially issued upon the exercise of this Warrant
shall bear a legend in substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS SPECIFIED IN A CERTAIN WARRANT DATED ,
1997. THE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE.
THE SHARES MAY NOT BE SOLD OR TRANSFERRED, EXCEPT UPON SUCH
REGISTRATION OR UPON DELIVERY TO XXXXXX INCORPORATED OF AN
OPINION OF COUNSEL SATISFACTORY TO XXXXXX INCORPORATED THAT
REGISTRATION IS NOT REQUIRED FOR SUCH SALE OR TRANSFER. A COPY
OF THE FORM OF THE WARRANT IS ON FILE AT THE OFFICES OF XXXXXX
INCORPORATED. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF
THIS CERTIFICATE, AGREES TO BE BOUND BY THE PROVISIONS OF THE
WARRANT."
If the initial issuance of such Warrant Shares occurs prior to
_____________, 1998, such certificates shall bear an additional legend in
substantially the following form:
"IN ADDITION, EXCEPT AS PROVIDED IN THE WARRANT, THE SHARES
MAY NOT BE SOLD OR TRANSFERRED UNTIL _____________, 1998."
(d) Notwithstanding the foregoing provisions of this
Section 7, the restrictions imposed by this Section upon the
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44
transferability of such Warrant Shares and the legend requirements of this
Section shall terminate at such time following _____________, 1998 (A) when such
shares shall have been effectively registered under the Act and disposed of
pursuant thereto, or (B) when in the reasonable opinion of counsel to the
Company or the Holder thereof, such restrictions are not required in order to
ensure compliance with the Act. Whenever the restrictions imposed by this
Section 7 shall terminate as hereinabove provided, the Holder thereof shall be
entitled to receive from the Company, at the Company's expense, a new
certificate representing such Warrant Shares in the name of the same Holder not
bearing the restrictive legend set forth in Section 7(c).
8. Loss, etc., of Warrant. Upon receipt of evidence satisfactory to the Company
of the loss, theft, destruction or mutilation of this Warrant, and of indemnity
reasonably satisfactory to the Company, if lost, stolen or destroyed, and upon
surrender and cancellation of this Warrant, if mutilated, the Company shall
execute and deliver to the Holder a new Warrant of like date, tenor and
denomination.
9. Warrant Holder Not Stockholder. Except as otherwise provided herein, this
Warrant does not confer upon the Holder any right to vote or to consent to or
receive notice as a stockholder of the Company, as such, in respect of any
matters whatsoever, or any other rights or liabilities as a stockholder, prior
to the exercise hereof.
10. Communication. No notice or other communication under this Warrant shall be
effective unless, but any notice or other communication shall be effective and
shall be deemed to have been given if, the same is in writing and is mailed by
first-class mail, postage prepaid, addressed to:
(a) the Company at 0000 Xxxx Xxxxxx Xxxxxx, Xxx Xxxxx,
XX 00000, or such other address as the Company has
designated in writing to the Holder, with a copy to Xxxxxx
Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxxx X. Xxxxx, or
(b) the Holder at Xxxxxx, Xxxxxxxx & Company
Incorporated, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx,
Xxxxxxxx 00000 or such other address as the Holder has
designated in writing to the Company.
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45
11. Headings. The headings of this Warrant have been inserted as a matter of
convenience and shall not affect the construction hereof.
12. Applicable Law. This Warrant shall be governed by and construed in
accordance with the law of the State of New York without giving effect to the
principles of conflicts of law thereof.
[Signature Page Follows]
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46
IN WITNESS WHEREOF, Xxxxxx Incorporated has caused this
Warrant to be signed by its [ ] and its corporate seal to be hereunto
affixed and attested by its Secretary this _____ day of ______________, 1997.
XXXXXX INCORPORATED
By: _______________________________
Name:
Title:
ATTEST:
____________________________
Name:
Title:
[Corporate Seal]
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47
ASSIGNMENT
FOR VALUE RECEIVED __________________________ hereby sells,
assigns and transfers unto _______________________________ the foregoing Warrant
and all rights evidenced thereby, and does irrevocably constitute and appoint
_____________________________, attorney, to transfer said Warrant on the books
of Xxxxxx Incorporated
Dated: ________________ Signature: _____________________________
Address: _______________________________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED __________________________ hereby sells,
assigns and transfers unto __________________________ the right to purchase
_____________ shares of Common Stock of Xxxxxx Incorporated covered by the
foregoing Warrant, and a proportionate part of said Warrant and the rights
evidenced thereby, and does irrevocably constitute and appoint
__________________________, attorney, to transfer that part of said Warrant on
the books of Xxxxxx Incorporated
Dated: ________________ Signature: _____________________________
Address: _______________________________
48
SUBSCRIPTION FORM
The undersigned hereby irrevocably elects to exercise the
right of purchase represented by the attached Warrant for, and to purchase
thereunder, _____________ shares of Common Stock of Xxxxxx Incorporated, as
provided for in Section 1 thereof.
The undersigned herewith makes payment for such shares in full
at the price per share provided by such Warrant in the following manner (please
check the type or types of payment and indicate the portion of the aggregate
payment to be paid by each type of payment):
____ Exercise for cash as provided in Section 1(a) of such
Warrant.
____ Exercise by surrender of such Warrant (or a portion
thereof) in accordance with Section 1(b) of such Warrant.
Please issue a certificate or certificates for such shares in
the name of, and pay any cash for any fractional share to:
Name ___________________________________
(Please Print Name, Address and Social
Security No. or Taxpayer Identification No.)
Address ________________________________
________________________________
Social Security No. or
Taxpayer Identification No._____________
Signature ______________________________
NOTE: The above signature should
correspond exactly with the name
on the first page of such
Warrant or with the name of the
assignee appearing in the
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49
assignment form attached to the
Warrant.
And if such number of shares shall not be all the shares
purchasable under the attached Warrant, a new Warrant is to be issued in the
name of said undersigned for the balance remaining of the shares purchasable
thereunder and delivered to the address set forth above.
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