EXHIBIT 10(aa)
AMENDMENT NO. 1 TO UNDERWRITER'S WARRANT AGREEMENT
Amendment dated as of January 23, 1992 ("Amendment") to a certain
Underwriter's Warrant Agreement dated as of January 23, 1992 (the "Original
Warrant Agreement") among Misonix, Inc. (originally called "Medsonic, Inc."), a
New York corporation (the "Company"), and Xxxxxxxxxx Xxxx & Xxxx Incorporated, a
New York corporation (referred to as the "Underwriter").
WITNESSETH
WHEREAS, pursuant to the Original Warrant Agreement, the Underwriter was
issued warrants (the "Underwriter's Warrants") entitling it to purchase from the
Company (A) at $10.725 per share, up to an aggregate of 160,000 shares of Common
Stock, $.01 par value of the Company (the "Underwriting Shares"), and (B)
160,000 redeemable warrants at a price of $.165 per redeemable warrant (the
"Warrants"), each Warrant entitling the Holder to purchase one share of the
Company's Common Stock (the "Shares") at an exercise price of $12.87 per Share
until 5:30 pm, New York Time on January 23, 1997 (the "Warrant Expiration
Date"); and
WHEREAS, the Underwriter has not exercised the Underwriter's Warrants but
has transferred the same to the persons whose names are hereinafter set forth on
the signature page (the "Holder(s)"),
WHEREAS, the Underwriter, the Holders and the Company have certain
differences of opinion as to the rights of the Underwriter and the Holder(s)
under the Original Warrant Agreement and, in full settlement and compromise of
such differences, the parties hereto have agreed to modify the Original Warrant
Agreement, the Underwriter's Warrants and the Warrants, as hereinafter provided
in this Amendment and, as so modified, to provide for the modification of
certain of the terms and conditions in exercise of the Underwriter's Warrants
and issuance of the underlying securities to the Holder(s);
NOW, THEREFORE, in consideration of the following and for other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Section 1 of the Original Warrant Agreement is hereby deleted in its
entirety and replaced as follows:
"1. Grant. (a) The Holder is hereby granted the right to purchase,
at any time until 5:30 P.M., New York time, on February 3, 1997,
up
to an aggregate of 160,000 Shares at an exercise price of $1.00
per Share subject to the terms and conditions of this Agreement.
(b) The Holder is hereby granted the right to purchase, at any
time until 5:30 P.M., New York time, on May 31, 1998 (the
"Expiration Date"), up to an aggregate of 160,000 Shares
issuable upon the exercise of 160,000 Redeemable Warrants. No
Redeemable Warrant may be exercised after 5:30 p.m. on the
Expiration Date, at which time all Warrants evidenced hereby,
unless exercised prior thereto, shall thereafter be void. Each
Redeemable Warrant is exercisable to purchase one Share at an
initial exercise price of $6.00. Except as set forth herein and
except that the Redeemable Warrants are not subject to call or
redemption by the Company, the Shares and Redeemable Warrants
are in all respects identical to the shares of Common Stock and
Redeemable Warrants purchased by the Underwriter for resale to
the public pursuant to the terms and provisions of the
Underwriting Agreement."
2. Section 5 of the Original Warrant Agreement is hereby deleted in its
entirety and replaced as follows:
"5. Restriction on Transfer of Warrants. The Holder of the Shares
and a Redeemable Warrant Certificate, by its acceptance thereof,
covenants and agrees that the Warrant Securities are being
acquired as an investment and not with a view to the
distribution thereof."
3. Section 6 of the Original Warrant Agreement is hereby deleted in its
entirety and replaced as follows:
"6. Exercise Price.
ss.6.1 Initial and Adjusted Exercise Price. Except as otherwise
provided in Section 8 hereof, the initial Exercise Price of each
Redeemable Warrant shall be $6.00 per Share. The adjusted
Exercise Price shall be the price which shall result from time
to time from any and all adjustments of the initial Exercise
Price in accordance with the provisions of Section 8 hereof.
ss.6.2 Exercise Price. The term "Exercise Price" herein shall mean the
initial Exercise Price or the adjusted Exercise Price, depending
upon the context."
4. Sections 8.1, 8.2, and 8.8 of the Original Warrant Agreement are hereby
deleted in their entirety.
5. Section 8.9 of the Original Warrant Agreement is hereby deleted in its
entirety and replaced as follows:
"8.9 Redemption of Redeemable Warrants. Notwithstanding anything to
the contrary contained in the Redeemable Warrant Agreement or
elsewhere, the Redeemable Warrants cannot, under any
circumstances, be redeemed by the Company, and shall remain in
full force and effect, notwithstanding the exercise or
expiration of the 1,600,000 Redeemable Warrants originally
distributed to the public on January 23, 1992."
6. Section 13 of the Original Warrant Agreement is hereby deleted in its
entirety and replaced as follows:
"13. Redeemable Warrants. The form of the certificate representing
the Redeemable Warrants (and the form of election to purchase
shares of Common Stock upon the exercise of the Redeemable
Warrants and the form of the assignment printed on the reverse
thereof) shall be substantially as set forth in Exhibit A
annexed hereto."
7. Section 17 of the Original Warrant Agreement is hereby amended by
deleting the dates "January 23, 1999" and "January 23, 2005" on the second and
third lines thereof, and replacing them with the dates "May 31, 2000" and "May
31, 2006" respectively.
8. The individuals set forth on the signature page hereof hereby represent
and warrant to the Company as follows:
(a) they have not attempted to transfer any Warrant Securities and,
to the best of their knowledge, there are no prior claims on any
of their Warrant Securities; and
(b) they currently intend to exercise their Warrants pursuant to the
"cashless exercise" provision of Section 3.2 of the Original
Warrant Agreement.
9. Governing Law and Jurisdiction.
(a) This Amendment and each Redeemable Warrant issued hereunder
shall be deemed to be a contract made under the laws of the
State of New York and for all purposes shall be construed in
accordance with the laws of said State without giving effect to
the rules of said State governing the conflicts of laws.
(b) The Company, the Underwriter and the Holders hereby agree that
any action, proceeding or claim against it arising out of, or
relating
in any way to, this Amendment shall be brought and enforced in
the courts of the State of New York or of the United States of
America for the Southern District of New York, and irrevocably
submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company, the Underwriter and the Holders hereby
irrevocably waive any objection to such exclusive jurisdiction
or inconvenient forum. Any such process or summons to be served
upon any of the Company, the Underwriter and the Holders (at the
option of the party bringing such action, proceeding or claim)
may be served by transmitting a copy thereof; by registered or
certified mail, return receipt requested, postage prepaid,
addressed to it at the address set forth in Section 14 hereof.
Such mailing shall be deemed personal service and shall be legal
and binding upon the party so served in any action, proceeding
or claim.
10. Entire Agreement: Modification. This Amendment (including Exhibit A
hereof) contains the entire understanding between the parties hereto with
respect to the subject matter hereof and may not be modified or amended except
by a writing duly signed by the party against whom enforcement of the
modification or amendment is sought.
11. Severability. If any provision of this amendment shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision thereof.
12. Captions. The caption headings of the paragraphs of this Amendment are
for convenience of reference only and are not intended, nor should they be
construed as, a part of this instrument and shall be given no substantive
effect.
13. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed but one and the same original
instrument.
14. Effectiveness of Original Warrant Agreement. Except as expressly
amended by this Amendment, the Original Warrant Agreement shall remain
unmodified and in full force and effect.
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE
UPON EXERCISE HEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY
SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii)
AN OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO
COUNSEL FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS
AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:30P.M. NEW YORK TIME, MAY 31, 1998
NO. W-
___________Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that _________, or registered assigns,
is the registered holder of __________ Warrants to purchase initially, at any
time until 5:30 p m. New York time on May 31, 1998 ("Expiration Date"), up to
160,000 fully-paid and non-assessable shares of common stock, $.01 par value
("Common Stock") of Misonix, Inc., a New York corporation (the "Company"), at
the initial exercise price, subject to adjustment in certain events (the
"Exercise Price"), of $6.00 per share of Common Stock upon surrender of this
Warrant Certificate and payment of the Exercise Price at an office or agency of
the Company, but subject to the conditions set forth herein and in the warrant
agreement dated as of January 23, 1992 between the Company and Xxxxxxxxxx Xxxx &
Xxxx Incorporated ("Josephthal"), as amended by that certain Amendment No. 1 to
Underwriter's Warrant Agreement dated as of January 23, 1997 by and among the
Company, Josephthal, and the holders of the Underwriter's Warrants (the "Warrant
Agreement"). Payment of the Exercise Price shall be made by certified or
official bank check in New York Clearing House funds payable to the order of the
Company.
No Warrant may be exercised after 5:30 p.m., New York time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Warrant Agreement is hereby incorporated by reference herein and made a part of
this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company and the holders (the words "holders" or "holder" meaning the registered
holders or registered holder) of the Warrants.
The Warrant Agreement provides that upon the ocurrence of certain events,
the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; provided,
however, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate at an office or agency of the Company, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax or other governmental charge
imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the holder hereof a new
Warrant Certificate representing such number of unexercised Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof; and of any distribution to the holder(s) hereof; and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed, as of the day and year first above written.
Attest: MISONIX, INC.
/s/ [illegible] By:/s/ Xxxxxx Xxxxxxxx
----------------------- ------------------------
Secretary Xxxxxx Xxxxxxxx
President
XXXXXXXXXX XXXX & XXXX
INCORPORATED
By:
---------------------
Xxx Xxxxxx
Chairman
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed, as of the day and year first above written.
Attest: MISONIX, INC.
/s/ By:
----------------------- ------------------------
Secretary Xxxxxx Xxxxxxxx
President
XXXXXXXXXX XXXX & XXXX
INCORPORATED
By: /s/ Xxx Xxxxxx
---------------------
Xxx Xxxxxx
Chairman
No. of Underwriter's
Holder(s) Warrants
--------- ---------------------
/s/ Xxxxxxxx Xxxx 9,414
--------------------------
Name: Xxxxxxxx Xxxx
Address:
/s/ Xxx Xxxxxx 88,031
--------------------------
Name: Xxx Xxxxxx
Address:
/s/ Xxxx Xxxxxxxxxx 444
--------------------------
Name: Xxxx Xxxxxxxxxx
Address:
/s/ Xxxxxxx Xxxx 3,701
--------------------------
Name: Xxxxxxx Xxxx
Address:
/s/ Xxxxxxx Xxxxx 6,355
--------------------------
Name: Xxxxxxx Xxxxx
Address:
12,635
--------------------------
Name: Estate of Xxxxx Xxxxx
Address:
2,675
--------------------------
Name: Xxxxxxx Xxxxxxx
Address:
No. of Underwriter's
Holder(s) Warrants
--------- ---------------------
/s/ Xxxxxxxx Xxxx
--------------------------
Name: Xxxxxxxx Xxxx
Address:
/s/ Xxx Xxxxxx
--------------------------
Name: Xxx Xxxxxx
Address:
--------------------------
Name: Xxxx Xxxxxxxxxx
Address:
/s/ Xxxxxxx Xxxx
--------------------------
Name: Xxxxxxx Xxxx
Address:
/s/ Xxxxxxx Xxxxx
--------------------------
Name: Xxxxxxx Xxxxx
Address:
--------------------------
Name: Estate of Xxxxx Xxxxx
Address:
/s/ Xxxxxxx Xxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxx
Address:
No. of Underwriter's
Holder(s) Warrants
--------- ---------------------
--------------------------
Name: Xxxxxxxx Xxxx
Address:
--------------------------
Name: Xxx Xxxxxx
Address:
--------------------------
Name: Xxxx Xxxxxxxxxx
Address:
--------------------------
Name: Xxxxxxx Xxxx
Address:
--------------------------
Name: Xxxxxxx Xxxxx
Address:
/s/ Xxxxxx Xxxx executor 12,635
--------------------------
Name: Estate of Xxxxx Xxxxx
Address:
--------------------------
Name: Xxxxxxx Xxxxxxx
Address:
No. of Underwriter's
Holder(s) Warrants
--------- ---------------------
/s/ Xxxxxxx Xxxx 7,845
----------------------------
Name: Xxxxxxx Xxxx
Address:
16,000
----------------------------
Name: Xxx Xxxxxx
Address:
/s/ Xxxxx Xxxxxxxxxx 10,000
----------------------------
Name: Xxxxx Xxxxxxxxxx
Address:
/s/ Xxxxxx Xxxxxx 1,000
----------------------------
Name: Xxxxxx Xxxxxx
Address:
/s/ Xxxxx Xxxxxxxx 700
---------------------------
Name: Xxxxx Xxxxxxxx
Address:
600
---------------------------
Name: Xxxx Xxx
Address:
600
---------------------------
Name: Xxxxx Xxxx
Address:
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3.1]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase:
________ shares of Common Stock
and herewith tenders in payment for such securities a certified or official bank
check payable in New York Clearing House Funds to the order of Misonix, Inc. in
the amount of $__________ all in accordance with the terms hereof. The
undersigned requests that a certificate for such securities be registered in the
name of ___________________ whose address is ___________________ and that such
Certificate be delivered to _______________ whose address is _________________.
Dated:
Signature ________________________________________
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Certificate.)
__________________________________________________
(Insert Social Security or Other Identifying Number of
Holder)
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3.2]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase;
____________ shares of Common Stock
all in accordance with the terms of Section 3.2 of the Underwriter's Warrant
Agreement dated as of January 23, 1992, as amended as of January 23, 1997
between Misonix, Inc. and Xxxxxxxxxx Xxxx & Xxxx Incorporated. The undersigned
requests that a certificate for such Securities be registered in the name______
whose address is ______________ and that such Certificate be delivered to
____________________ whose address is ___________.
Dated:
Signature ________________________________________
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Certificate.)
__________________________________________________
(Insert Social Security or Other Identifying Number of
Holder)
[FORM OF ASSIGNMENT]
(To be executed by the registered holder
if such holder desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED _______________________________ hereby
sells, assigns and transfers unto
____________________________________________________________________
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _________________________
Attorney, to transfer the within Warrant Certificate on the books of the
within-named Company, with full power of substitution.
Dated: _____________ Signature ________________________________________
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Certificate.)
__________________________________________________
(Insert Social Security or Other Identifying Number of
Holder)
_________________________________________________
Signature Guaranteed
