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EXHIBIT 10.1
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (the "Agreement") is executed as of __________,
1997, between Olicom A/S, a corporation organized under the laws of the Kingdom
of Denmark (the "Company"), and American Stock Transfer & Trust Company, a New
York corporation, as warrant agent (the "Warrant Agent").
The Company, PW Acquisition Corporation, a Delaware corporation
("MergerSub"), and CrossComm Corporation, a Delaware corporation ("CrossComm"),
have executed and delivered an Agreement and Plan of Reorganization dated as of
March 20, 1997 (the "Merger Agreement"), providing for the merger of MergerSub
with and into CrossComm, whereby CrossComm shall be a wholly-owned subsidiary
of the Company immediately following the Effective Time (as defined in the
Merger Agreement) (the "Merger").
Pursuant to Section 1.6(b) of the Merger Agreement, the Company
proposes to issue, as part of the Merger Consideration (as defined in Section
1.6(b) of the Merger Agreement), a new issue of Warrants (as defined in Section
1.6(b) of the Merger Agreement), entitling the holders thereof to purchase
shares (the "Warrant Shares") of common stock, nominal value DKK 0.25 per
share, in the Company (the "Common Stock"). The Warrants shall be governed by
the terms and provisions of this Agreement.
The Company desires the Warrant Agent to act on behalf of the Company,
and the Warrant Agent is willing so to act, in connection with the issuance,
registration, registration of transfer, replacement and exchange of warrant
certificates and the exercise of Warrants.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
instructions set forth herein, and the Warrant Agent hereby accepts such
appointment, upon the terms and conditions hereinafter set forth.
2. Amount Issued. Subject to the provisions of this
Agreement, _______ Warrants to purchase up to an aggregate of ________ Warrant
Shares may be issued and delivered by the Company hereunder. The Warrants
issued hereunder shall be deemed to have been issued as of the Closing Date (as
defined in Section 1.2 of the Merger Agreement).
3. Form of Warrant Certificate. The certificates evidencing
the Warrants (the "Warrant Certificates") (and the forms of election to
purchase Warrant Shares and of assignment to be printed on the reverse thereof)
shall be substantially in the form set forth in Exhibit A hereto and may have
such letters, numbers or other marks of identification or designation and such
legends, summaries or endorsements printed, lithographed or engraved thereon as
the Company may deem appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or
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regulation of The Nasdaq Stock Market or any national stock exchange on which
the Warrants may from time to time be listed, or to conform to usage. Each
Warrant Certificate shall be executed on behalf of the Company by the manual or
facsimile signature of the present or any future Managing Director and, to the
extent requested by the Company, other directors of the Company. The Warrant
Certificates shall be dated as of the Closing Date, upon initial issuance by
the Company, and thereafter, upon transfer or exchange, as of the date of
countersignature thereof by the Warrant Agent.
4. Registration and Countersignature.
(a) The Warrant Agent shall maintain books for the
registration, and registration of transfer, of the Warrant
Certificates. The Warrant Certificates shall be countersigned by the
Warrant Agent and shall not be valid for any purpose unless so
countersigned. The Warrant Certificates shall be so countersigned,
however, by the Warrant Agent and shall be delivered by the Warrant
Agent, notwithstanding that the persons whose manual or facsimile
signatures appear thereon as proper officers (and directors, to the
extent their signatures thereon are requested by the Company) of the
Company shall have ceased to be such officers (or directors) at the
time of such countersignature or delivery.
(b) Prior to due presentment for registration or transfer
of the Warrant Certificates, the Company and the Warrant Agent shall
deem and treat the registered holder thereof as the absolute owner of
Warrants (notwithstanding any notation of ownership or other writing
on the Warrant Certificate made by anyone other than the Company or
the Warrant Agent), for the purpose of any exercise thereof and for
all other purposes and no transfer or exchange will be effective
unless made in accordance with Sections 11 and 12 herein and neither
the Company nor the Warrant Agent shall be affected by any notice to
the contrary.
5. Registration of Transfers and Exchanges. The Warrant Agent
shall from time to time register the transfer of any outstanding Warrant
Certificates made in accordance with Sections 11 and 12 herein upon the books
to be maintained by the Warrant Agent for that purpose, upon surrender thereof
to the Company or to the Warrant Agent accompanied (if so required by the
Company or the Warrant Agent) by a written instrument or instruments of
transfer in form satisfactory to the Company and the Warrant Agent, duly
executed by the registered holder or by a duly authorized representative or
attorney, such signature to be guaranteed by an eligible guarantee institution
with a membership in an approved Medallion Signature Guarantee Program, which
institution may be a commercial bank, trust company credit union or savings
association having an office in the United States, a broker or dealer that is a
member of the National Association of Securities Dealers, Inc., a member of a
national securities exchange or such commercial banks or similar institutions
in Denmark as may be designated by the Company (any such entity being an
"Eligible Institution"). In all cases of written requests pursuant to Sections
6 or 12 hereof by an attorney, the original power of attorney, duly approved,
or copy thereof, duly certified and satisfactory to the Warrant Agent, shall be
deposited and remain with the Warrant Agent. In the case of written request by
executors, administrators, guardians or other legal representatives, duly
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authenticated evidence of their authority satisfactory to the Warrant Agent
shall be produced and deposited with the Warrant Agent. Upon any such
registration of transfer, a new Warrant Certificate shall be issued to the
transferee and the surrendered Warrant Certificate shall be cancelled by the
Warrant Agent. Warrant Certificates so cancelled shall be delivered by the
Warrant Agent to the Company from time to time or otherwise disposed of by the
Warrant Agent in a manner satisfactory to the Company. Warrant Certificates
may be exchanged at the option of the holder thereof when surrendered at the
principal office of the Warrant Agent in New York, New York or the principal
office of the Company in greater Copenhagen, Denmark (in such event the Company
shall forward the Warrant Certificates surrendered and the instruments of
transfer to the Warrant Agent) for another Warrant Certificate or other Warrant
Certificates of like tenor and representing in the aggregate the number of
Warrants evidenced by the Warrant Certificate or Warrant Certificates so
surrendered. The Warrant Agent shall countersign and deliver, in accordance
with the provisions of this Section 5 and of Section 4 hereof, the new Warrant
Certificate or Warrant Certificates required pursuant to the provisions of this
Section 5, and the Company, whenever required by the Warrant Agent, will supply
the Warrant Agent with Warrant Certificates duly executed on behalf of the
Company for such purpose.
6. Duration and Exercise of Warrants.
(a) The Warrants may be exercised at any time or from
time to time after the date hereof and will expire at 5:00 p.m.,
Eastern time, on ______________________________, 2000 (the "Expiration
Date"), at which time all rights evidenced by the Warrants shall cease
and the Warrants shall become void.
(b) Subject to the provisions of this Agreement, the
registered holder of each Warrant shall have the right to purchase
from the Company (and the Company shall issue and sell to such
registered holder) the number of fully paid and nonassessable Warrant
Shares set forth on such holder's Warrant Certificate (or such number
of Warrant Shares as may result from adjustments made from time to
time as provided in Section 14 of this Agreement), at the price of
$19.74 per Warrant Share in lawful money of the United States of
America (such exercise price per Warrant Shares, as adjusted from time
to time as provided in Section 14 herein, being referred to herein as
the "Exercise Price"), upon (i) surrender of the Warrant Certificate
to the Company at the principal office of the Warrant Agent in New
York, New York or the principal office of the Company in greater
Copenhagen, Denmark with the form of exercise election contained
therein duly completed and signed in accordance with Section 5 hereof
by the registered holder or holders thereof or by a duly appointed
legal representative thereof or by a duly authorized attorney, such
signature to be guaranteed by an Eligible Institution if the Warrant
Shares are to be issued to a person other than the registered holder
of the Warrants and (ii) payment, in lawful money of the United States
of America by money order or bank draft, of the Exercise Price for the
Warrant Share or Warrant Shares in respect of which such Warrant is
exercised. Subject to Section 8 hereof, upon surrender of a Warrant
Certificate, and payment of the Exercise Price, the Company shall
issue and cause to be registered, countersigned and delivered to or
upon the written order of the registered holder of such Warrant and in
such
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name or names as may duly be designated, a certificate for the Warrant
Shares being issued pursuant to the Warrant then being exercised,
together with cash in respect of any fraction of a Warrant Share
issuable upon such surrender.
(c) Each person in whose name any certificate for Warrant
Shares is issued upon the exercise of Warrants shall for all purposes
be deemed to have become the holder of record of the Common Stock
represented thereby on, and such certificate shall be dated, the date
upon which the Warrant Certificate evidencing such Warrants was duly
surrendered and payment of the Exercise Price (and any applicable
transfer taxes) was made; provided, however, that if the date of such
surrender and payment is a date upon which the Common Stock transfer
books of the Company are closed, such person shall be deemed to have
become the record holder of such Warrant Shares on, and such
certificate shall be dated, the next succeeding business day on which
the Common Stock transfer books of the Company are open (whether
before, on or after the Expiration Date) and until such date the
Company shall be under no duty to deliver any certificate for such
share or shares.
(d) In the event that less than all the Warrants
represented by a Warrant Certificate are exercised by the registered
holder thereof or a duly authorized representative before 5:00 p.m.,
Eastern time, on the Expiration Date, a new Warrant Certificate will
be issued for the remaining number of Warrants exercisable pursuant to
the Warrant Certificate so surrendered, and the Warrant Agent shall
countersign and deliver the required new Warrant Certificate pursuant
to the provisions of this Section 6 and of Section 4 hereof and the
Company, whenever required by the Warrant Agent, shall deliver to the
Warrant Agent a Warrant Certificate duly executed on behalf of the
Company for such purpose.
(e) The number of Warrant Shares to be received upon
exercise of a Warrant and the price to be paid for a Warrant Share are
subject to adjustment from time to time as hereinafter set forth in
Section 14.
7. Fractional Interests. The Company shall not be required to
issue any Warrant Certificate evidencing a fraction of a Warrant or to issue
fractions of shares of securities on the exercise of the Warrants. If any
fraction (calculated to the nearest one-hundredth) of a Warrant or a share of
securities would, except for the provisions of this Section, be issuable on the
exercise of any Warrant, the Company shall, at its option, either purchase such
fraction for an amount in cash equal to the current value of such fraction
computed on the basis of the closing market price (as quoted on The Nasdaq
Stock Market) on the trading day immediately preceding the day upon which such
Warrant Certificate was surrendered for exercise in accordance with Section 6
hereof or issue the required Warrant or share. By accepting a Warrant
Certificate, the holder thereof expressly waives any right to receive a Warrant
Certificate evidencing any fraction of a Warrant or to receive any fractional
share of securities upon exercise of a Warrant, except as expressly provided in
this Section 7.
8. Payment of Taxes. The Company shall pay all documentary
stamp, transfer taxes and other taxes attributable to the original issuance of
the Warrants and of the Warrant Shares upon
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the exercise of Warrants; provided, however, that the Company shall not be
required to (a) pay any tax which may be payable in respect of any transfer or
delivery of Warrant Certificates or the issuance or delivery of certificates
for shares of Common Stock in a name other than that of the registered holder
of the Warrant Certificate upon the exercise of a Warrant or (b) issue or
deliver any certificate for Warrant Shares upon the exercise of any Warrants
until any such tax required to be paid under clause (a) shall have been paid,
all such tax being payable by the holder of such Warrant at the time of
surrender.
9. Mutilated or Missing Warrant Certificates. In case any
Warrant Certificate shall be mutilated, lost, stolen or destroyed, upon
cancellation of the mutilated, lost, stolen or destroyed Warrant Certificate,
the Company shall issue, and the Warrant Agent shall countersign and deliver in
exchange and substitution for the mutilated, lost, stolen or destroyed Warrant
Certificate, a new Warrant Certificate of like tenor and evidencing the number
of Warrant Shares purchasable upon exercise of the Warrant Certificate so
mutilated, lost, stolen or destroyed, but only upon receipt of evidence
satisfactory to the Warrant Agent of such loss, theft or destruction of such
Warrant Certificate and an indemnity, if requested, also satisfactory to it.
Applicants for any such substitute Warrant Certificate shall also comply with
such other reasonable requirements and pay such other reasonable charges as the
Company or the Warrant Agent may prescribe, including the posting of a
customary bond. Any such new Warrant Certificate shall constitute an original
contractual obligation of the Company, whether or not the allegedly mutilated,
lost, stolen or destroyed Warrant Certificate shall be at any time enforceable
by anyone.
10. Reservation of Shares; Stock Certificates. The Company
covenants and agrees that it shall at all times through the Expiration Date
reserve or cause to be reserved for issuance and delivery upon exercise of the
Warrants, a sufficient number of shares of Common Stock or other securities of
the Company from time to time issuable upon exercise of the Warrants. The
Company covenants and agrees that it shall take all such action as may be
necessary to ensure that all such shares shall be duly authorized and, when
issued upon such exercise, shall be validly issued, fully paid and
nonassessable, free and clear of all liens, security interests, charges and
other encumbrances or restrictions on sale and free and clear of all preemptive
rights. The Company will keep a copy of this Agreement on file with its
transfer agent, American Stock Transfer & Trust Company, or any successor
thereto (the "Transfer Agent"). The Warrant Agent is hereby irrevocably
authorized to requisition from time to time from such Transfer Agent
certificates issuable upon exercise of outstanding Warrants. The Company will
supply such Transfer Agent with duly executed certificates for such purpose.
All Warrant Certificates surrendered upon exercise of Warrants shall be
cancelled by the Warrant Agent and shall thereafter be delivered to the Company
or otherwise disposed of in a manner satisfactory to the Company. Unless all
Warrants shall have been exercised prior to 5:00 p.m. Eastern time, on the
Expiration Date, the Warrant Agent shall certify to the Company, as of the
close of business on the Expiration Date, the total aggregate amount of
Warrants then outstanding, and thereafter no shares of Common Stock shall be
subject to reservation in respect of such Warrants.
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11. Transfer and Registration of Warrants and Warrant Shares.
(a) The Warrants and the Warrant Shares, and any interest
in either, may be sold, assigned, pledged, encumbered or in any other
manner transferred or disposed of, in whole or in part, only in
accordance with Section 12 hereof and in compliance with applicable
United States federal and state securities laws and the terms and
conditions hereof.
(b) The Warrants and the Warrant Shares have been
registered under the Securities Act of 1933, as amended, pursuant to a
registration statement on Form F-4 (Registration No. __________) which
was declared effective by the Securities and Exchange Commission (the
"SEC") on __________, 1997. The Company will use its reasonable best
efforts to keep such registration statement in effect in accordance
with applicable federal securities laws through the Expiration Date or
until such earlier time as no Warrants remain outstanding. The
Company covenants and agrees:
(i) to prepare and file with the SEC such
amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective in
accordance with applicable federal securities laws through
the Expiration Date or until such earlier time as no
Warrants remain outstanding and to use its reasonable best
efforts to keep such registration statement effective
during such period;
(ii) as expeditiously as possible, to use its
reasonable best efforts to register or qualify the
Warrants, and to register or qualify the Warrant Shares,
under the securities or Blue Sky laws of each jurisdiction
in which such registration or qualification is necessary;
and
(iii) to pay all expenses incurred by the Company
in complying with this Section 11(b), including, without
limitation, (A) all registration and filing fees, (B) all
printing expenses, (C) all fees and disbursements of
counsel and independent public accountants for the Company,
(D) all Blue Sky fees and expenses (including fees and
expenses of counsel in connection with any Blue Sky
surveys), and the entire expense of any special audits
incident to or required by any such registration.
12. Exchange, Transfer or Assignment of Warrants.
(a) The Warrants may be exchanged or transferred, at the
option of the holder, upon presentation and surrender of Warrant
Certificates to the Warrant Agent or to the Company, for other Warrant
Certificates of different denominations, entitling the holder or
holders thereof to purchase in the aggregate the same number of
Warrant Shares. Subject to the preceding sentence, a Warrant
Certificate may be divided or combined with other Warrant Certificates
that carry the same rights upon presentation thereof at the office of
the Warrant Agent or the Company, together with written notice
specifying the names and
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denominations in which new Warrant Certificates are to be issued and
signed by the holder thereof in accordance with Section 5 hereof.
(b) The Warrants may be assigned or transferred, at the
option of the holder, upon surrender of Warrant Certificates to the
Warrant Agent or to the Company, with the form of warrant assignment
contained therein duly executed in accordance with Section 5 hereof
and accompanied by funds sufficient to pay any transfer tax. The
Warrant Agent shall execute and deliver a new Warrant Certificate or
Certificates in the name of the assignee or assignees named in such
instrument of assignment and, if the holder's entire interest in the
Warrants is not being transferred or assigned, in the name of the
holder, and the Warrant Certificate surrendered shall promptly be
cancelled.
(c) Any transfer, exchange or assignment of the Warrants
shall be without charge (other than the cost of any transfer tax to be
paid by the holder pursuant to Section 8 hereof) to the holder and any
new Warrant Certificates issued pursuant to this Section 12 shall be
dated the date such new Warrant Certificate is issued.
13. Rights of Warrant Holder. The holder of any Warrant shall
not, by virtue thereof, be entitled to any rights of a shareholder in the
Company, either at law or in equity, and the rights of the holder are limited
to those expressed in this Agreement.
14. Antidilution Provisions. The Exercise Price and the number
of Warrant Shares that may be purchased upon the exercise of a Warrant and the
number of Warrants outstanding will be subject to change or adjustment as
follows:
(a) Stock Dividends, Stock Splits and Reverse Stock
Splits and Combinations. If at any time after the date of the
issuance of the Warrants and before 5:00 p.m., Eastern time, on the
Expiration Date, (i) the Company shall fix a record date for the
issuance of any stock dividend payable in shares of capital stock of
the Company or (ii) the number of shares of Common Stock shall have
been increased by a subdivision or stock split of shares of Common
Stock or decreased by a reverse stock split or combination of shares
of Common Stock, then, on the record date fixed for the determination
of holders of Common Stock entitled to receive such dividend or
immediately after the effective date of such subdivision, stock split,
reverse stock split or combination, as the case may be, the number of
Warrant Shares to be delivered upon exercise of any Warrant will be
appropriately increased or decreased, as the case may be, so that each
holder of a Warrant thereafter will be entitled to receive the number
of shares of Common Stock that such holder would have owned or have
been entitled to receive immediately following such action had the
Warrant been exercised immediately prior thereto, and the Exercise
Price will be appropriately adjusted. The time of occurrence of any
event giving rise to an adjustment made pursuant to this Section 14(a)
shall, in the case of a subdivision, stock split, reverse stock split
or combination, be the effective date thereof and shall, in the case
of a dividend or distribution, be the record date thereof.
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(b) Reorganization, Reclassification, Etc. If any
capital reorganization of the Company, or any reclassification of the
Common Stock, or any consolidation of the Company with or merger of
the Company with or into any other corporation or any sale, lease or
other transfer of all or substantially all of the assets of the
Company to any other entity (including any individual, partnership,
joint venture, corporation, trust or group thereof), shall be effected
in such a way that the holders of the Common Stock shall be entitled
to receive stock, securities or assets with respect to or in exchange
for Common Stock, then, upon exercise of the Warrants in accordance
with the terms of this Agreement and the Warrant Certificates, each
holder shall have the right to receive the kind and amount of stock,
securities or assets receivable upon such reorganization,
reclassification, consolidation, merger or sale, lease or other
transfer by a holder of the number of shares of Common Stock that such
holder would have owned or would have been entitled to receive upon
exercise of the Warrants had the Warrants been exercised immediately
before such reorganization, reclassification, consolidation, merger or
sale, lease or other transfer, subject to adjustments that shall be as
nearly equivalent as may be practicable to the adjustments provided
for in this Section 14.
(c) Special Distributions. If at any time after the date
of issuance of the Warrants and before 5:00 p.m., Eastern time, on the
Expiration Date the Company shall, to or for the account or benefit of
the holders of the outstanding shares of Common Stock, make any
distribution, payment or transfer of any asset, property or security
(but excluding those described in Section 14(a) or (b) hereof and any
cash distributions made as a dividend which in any fiscal year in the
aggregate are less than net earnings from continuing operations for
the previous fiscal year or dividends which are consistent with past
practice) of the Company or any of its subsidiaries, and thereafter,
successively upon each such distribution or issuance, the Exercise
Price in effect immediately prior to such distribution or issuance
shall forthwith be reduced to a price determined by multiplying the
Exercise Price in effect immediately prior to such distribution or
issuance by a fraction (i) the numerator of which shall be the Closing
Price (as defined in Section 14(d) hereof) per share of Common Stock
at the record date for the determination of shareholders entitled to
receive such distribution or issuance, less the then fair market value
(as determined in good faith by the Board of Directors of the Company,
whose determination shall be conclusive) of the portion of such
distribution applicable to one share of Common Stock and (ii) the
denominator of which shall be the Closing Price per share of Common
Stock at such record date. An adjustment made pursuant to this
Section 14(c) shall become effective retroactively to the time
immediately after the record date for the determination of
shareholders entitled to receive such distribution or issuance.
(d) Definition of Closing Price. For the purposes of
this Agreement, "Closing Price" means the closing price per share of
the Common Stock on the principal national securities exchange on
which the Common Stock is listed or admitted to trading or,
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if not listed or traded on any such exchange, on The Nasdaq Stock
Market or such other over-the-counter quotations system on which such
shares of Common Stock are traded or, if not listed or traded on any
such exchange or system, the fair market value as reasonably
determined by the Board of Directors of the Company or any committee
of such Board.
(e) Definition of Common Stock. Unless the context
requires otherwise, all references to Common Stock and Warrant Shares
in this Agreement and in the Warrant Certificates shall, in the event
of an adjustment pursuant to this Section 14, be deemed to refer also
to any other securities or property then issuable upon exercise of the
Warrants as a result of such adjustment. In the event that at any
time, as a result of an adjustment made pursuant to this Section 14,
securities other than shares of Common Stock are issuable upon
exercise of the Warrants, thereafter the number of such other shares
so issuable shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Stock contained in this Section
14, and all other provisions of this Agreement with respect to Common
Stock shall apply on like terms to any such other shares.
(f) Threshold Requirement. No adjustment in the Exercise
Price or in the number of Warrant Shares purchasable hereunder shall
be required unless such adjustment would require an increase or
decrease of at least one percent (1%) in such Exercise Price or in the
number of Warrant Shares purchasable upon the exercise of each
Warrant; provided, however, that any adjustments which by reason of
this Section 14(f) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Section 14 shall be made to the nearest cent
and to the nearest one-thousandth of a Warrant Share, as the case may
be.
(g) Voluntary Adjustment by the Company. The Company may
at its option, at any time during the term of the Warrants, reduce the
then current Exercise Price to any amount and for any period of time
deemed appropriate by the Board of Directors of the Company or extend
the Expiration Date of the Warrants.
(h) Readjustments. If an adjustment is made under
paragraph (a), (b), or (c) above, and the event to which the
adjustment relates does not occur, then any adjustments in the
Exercise Price payable or number of Warrant Shares issuable that were
made in accordance with such paragraphs shall be adjusted back to the
Exercise Price and the number of Warrants that were in effect
immediately prior to the effective date thereof or the record date for
such event, as the case may be.
15. Officer's Certificate. Whenever the number of Warrant
Shares that may be purchased upon exercise of the Warrants is adjusted as
required by the provisions of this Agreement, the Company will forthwith file
in the custody of its executive officers at its principal office and with the
Warrant Agent an officer's certificate showing the adjusted number of Warrant
Shares that may be purchased upon exercise of the Warrants and the adjusted
Exercise Price, determined as herein provided, setting forth in reasonable
detail the facts requiring such adjustments and the manner of computing such
adjustment. Each such officer's certificate shall be made available at all
reasonable times for inspection by the registered holder of the Warrants.
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16. Notice of Certain Events. Upon any adjustment of the
Exercise Price pursuant to Section 14, the Company shall promptly, but in any
event within 20 days thereafter, cause to be mailed to the registered holders
of the Warrants, a certificate setting forth the Exercise Price as so adjusted
and the number of Warrant Shares issuable upon the exercise of each Warrant as
so adjusted and describing in reasonable detail the facts accounting for such
adjustment and the method of calculation used. Where appropriate, such
certificate may be given in advance and included as part of the notice required
to be mailed under the other provisions of this Section 16.
At any time during the period commencing on the date of this Agreement
and ending on the Expiration Date, in the event:
(a) the Company authorizes the issuance of rights or
warrants to subscribe for or purchase shares of Common Stock or any
other subscription rights or warrants to all holders of Common Stock;
(b) there shall be an adjustment to the Warrants pursuant
to Section 14(b) or 14(c) herein; or
(c) of the voluntary or involuntary dissolution, partial
dissolution, liquidation or winding-up of the Company,
then the Company will cause to be mailed to the registered holders of the
Warrants, at least 20 days before the applicable record or effective date
hereinafter specified, a notice stating (a) the date as of which the holders of
Common Stock of record entitled to receive any such rights, warrants or
distributions are to be determined or (b) the date on which any such
consolidation, merger, conveyance, transfer, dissolution, liquidation or
winding-up is expected to become effective, and (c) the date as of which it is
expected that holders of Common Stock of record will be entitled to exchange
their shares of Common Stock for securities or other property, if any,
deliverable upon such reorganization, reclassification, consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding-up.
Notwithstanding the foregoing, failure to give notice as required by
this Agreement, shall not affect the validity of the underlying corporate
action taken.
17. Listing on Securities Exchanges; Reservation of Shares.
(a) The Company shall use its best efforts to cause all
shares of the Common Stock from time to time issuable upon the
exercise of the Warrants to be listed on a national securities
exchange or The Nasdaq Stock Market, or such other over-the-counter
quotation system on which any Common Stock may at any time be listed,
and shall use its best efforts to maintain such listing so long as any
other shares of Common Stock are so listed; and the Company shall use
its best efforts to so list on a national securities exchange or The
Nasdaq Stock Market, or such other over-the-counter quotation system,
and shall use its best efforts to maintain such listing of, any other
shares of capital stock of the Company issuable upon
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the exercise of the Warrants if and so long as any shares of capital
stock of the same class are listed on such national securities
exchange or are traded on The Nasdaq Stock Market or such
over-the-counter quotation system. Any such listing or quotation will
be at the Company's expense.
(b) The Company will use its best efforts to cause the
Warrants to be listed on a national securities exchange or The Nasdaq
Stock Market, or such other over-the-counter quotation system on which
any Common Stock may at any time be listed. Any such listing or
quotation will be at the Company's expense.
18. Availability of Information. The Company shall comply with
all applicable public information reporting requirements of the SEC to which it
may from time to time be subject.
19. Right of Action. All rights of action in respect to this
Agreement are vested in the respective registered holders of the Warrant
Certificates; and any registered holder of any Warrant Certificate, without the
consent of the Warrant Agent or of any other holder of a Warrant Certificate,
may, in his own behalf for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to
enforce, or otherwise in respect of, his right to exercise the Warrants
evidenced by such Warrant Certificate, for the purchase of shares of the Common
Stock in the manner provided in the Warrant Certificate and in this Agreement.
20. Agreement of Holders of Warrant Certificates. Every holder
of a Warrant Certificate by accepting the same consents and agrees with the
Company, the Warrant Agent and with every other holder of a Warrant Certificate
that:
(a) The Warrant Certificates are transferrable on the
registry books of the Warrant Agent only upon the terms and conditions
set forth in this Agreement; and
(b) The Company and the Warrant Agent may deem and treat
the person in whose name the Warrant Certificate is registered as the
absolute owner of the Warrant (notwithstanding any notation of
ownership or other writing thereon made by anyone other than the
Company or the Warrant Agent) for all purposes whatever and neither
the Company nor the Warrant Agent shall be affected by any notice to
the contrary.
21. Duties of Warrant Agent. The Warrant Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Warrants, by their
acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant
Certificates shall be taken as statements of the Company, and the
Warrant Agent assumes no responsibility for the correctness of any of
the same except such as describe the Warrant Agent or action taken or
to be taken by it. The Warrant Agent assumes no responsibility with
respect to the delivery of Warrant Certificates except as herein
otherwise provided.
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12
(b) The Warrant Agent shall not be responsible for any
failure of the Company to comply with any of the covenants contained
in this Agreement or in the Warrant Certificates to be complied with
by the Company.
(c) The Warrant Agent may consult at any time with
counsel satisfactory to it (who may be counsel for the Company), and
the Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of any Warrant in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
accordance with the opinion or the advice of such counsel, provided
the Warrant Agent shall have exercised reasonable care in the
selection and continued employment of such counsel.
(d) The Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of any Warrant for any
action taken in good faith reliance on any notice, resolution, waiver,
consent, order, certificate or other paper, document or instrument
believed by it to be genuine and to have been signed, sent or
presented by the party or parties.
(e) The Company agrees (i) to pay to the Warrant Agent
reasonable compensation for all services rendered by the Warrant Agent
in the execution of this Agreement, (ii) to reimburse the Warrant
Agent for all expenses, taxes and governmental charges and other
charges of any kind and nature incurred by the Warrant Agent in the
execution of this Agreement (other than taxes measured by the Warrant
Agent's net income), and (iii) upon request, to advance to the Warrant
Agent funds to pay cash in lieu of fractional shares of Common Stock
issuable upon exercise of Warrants. The Company also agrees to
indemnify Warrant Agent for, and to hold it harmless against, any
loss, liability, or expense, incurred by Warrant Agent, for anything
done or omitted by Warrant Agent, without negligence or misconduct on
the part of Warrant Agent, in connection with the acceptance and
administration of this Agreement, including the costs and expenses of
defending against any claim of liability in the premises.
(f) The Warrant Agent shall be under no obligation to
institute any action, suit or legal proceeding or to take any other
action likely to involve expense unless the Company or one or more
registered holders of Warrants shall furnish the Warrant Agent with
reasonable security and indemnity for any costs and expenses which may
be incurred. All rights of action under this Agreement or under any
of the Warrants may be enforced by the Warrant Agent without the
possession of any of the Warrant Certificates or the production
thereof at any trial or other proceeding relative thereto, and any
such action, suit or proceeding instituted by the Warrant Agent shall
be brought in its name as Warrant Agent, and any recovery of judgment
shall be for the ratable benefit of the registered holders of the
Warrants, as their respective rights or interest may appear.
(g) The Warrant Agent and any stockholder, director,
officer or employee of the Warrant Agent may buy, sell or deal in any
of the Warrants or other securities of the Company or become
pecuniarily interested in any transaction in which the Company may be
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13
interested, or contract with or lend money to or otherwise act as
fully and freely as though it were not the Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from
acting in any other capacity for the Company or for any other legal
entity.
(h) The Warrant Agent shall act hereunder solely as
agent, and its duties shall be determined solely by the provisions
hereof. The Warrant Agent shall not be liable for anything which it
may do or refrain from doing in connection with this Agreement except
for its own negligence, bad faith or willful misconduct.
22. Merger, Consolidation or Change of Name of Warrant Agent.
Any corporation into which the Warrant Agent may be merged or with which it may
be consolidated, or any corporation resulting from any merger or consolidation
to which the Warrant Agent shall be a party, or any corporation succeeding to
the corporate trust business of the Warrant Agent, shall be the successor to
the Warrant Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor warrant agent
under the provisions of Section 23 hereof. If at the time such successor to
the Warrant Agent shall succeed to the agency created by this Agreement, and if
at that time any of the Warrant Certificates shall have been countersigned but
not delivered, any such successor to the Warrant Agent may adopt the
countersignature of the predecessor Warrant Agent and deliver such Warrant
Certificates so countersigned; and if at that time any of the Warrant
Certificates shall not have been countersigned, any successor to the Warrant
Agent may countersign such Warrant Certificates either in the name of the
predecessor Warrant Agent or in the name of the successor Warrant Agent; and in
all such cases such Warrant Certificates shall have the full force and effect
provided in the Warrant Certificates and in this Agreement.
If at any time the name of the Warrant Agent shall be changed and at
such time any of the Warrant Certificates shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior
name and deliver Warrant Certificates so countersigned; and if at that time any
of the Warrant Certificates shall not have been countersigned, the Warrant
Agent may countersign such Warrant Certificates either in its prior name or in
its changed name; and in all such cases such Warrant Certificates shall have
the full force and effect provided in the Warrant Certificates and in this
Agreement.
23. Change of Warrant Agent. The Warrant Agent may resign and
be discharged from its duties under this Agreement by giving to the Company
notice in writing, and to the holders of the Warrants notice in writing and
sent, postage prepaid, by first class mail to each registered holder of a
Warrant at such holder's address appearing in the Warrant Register, specifying
a date when such resignation shall take effect, which notice shall be sent at
least two weeks prior to the date so specified. Additionally, the Company may
remove and discharge the Warrant Agent from its duties under this Agreement by
giving to the Warrant Agent notice in writing, and to the holders of the
Warrants notice in writing and sent in the manner set forth in the immediately
preceding sentence, specifying a date when such removal shall take effect,
which notice shall be sent at least two weeks prior to the date of removal. If
the Warrant Agent shall resign or be removed, or otherwise become
- 13 -
14
incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver
of the Warrant Agent or of its property shall be appointed or any public
official shall take charge or control of the Warrant Agent or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation, the
Company shall appoint a successor to the Warrant Agent. If the Company shall
fail to make such appointment within a period of 30 days after it has notified
the Warrant Agent of such removal or has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Warrant Agent or by
the registered holder of a Warrant (who shall, with such notice, submit such
holder's Warrant Certificate for inspection by the Company), then the
registered holder of any Warrant may apply to any court of competent
jurisdiction for the appointment of a successor to the Warrant Agent.
Notwithstanding any provision to the contrary contained herein, the removal or
resignation of the Warrant Agent will be effective upon the expiration of the
applicable notice period, and in the event a successor has not then been
appointed, the Company shall assume the role of Warrant Agent until such time
as a successor Warrant Agent has been appointed in accordance with the terms of
this Agreement. Any successor Warrant Agent shall be (a) a corporation
organized and doing business under the laws of the United States or of any
state thereof, in good standing, which is authorized under such laws to
exercise corporate trust or stock transfer powers and is subject to supervision
or examination by federal or state authority and which has at the time of its
appointment as Warrant Agent a combined capital surplus of at least ten million
dollars ($10,000,000) or (b) an affiliate of a corporation described in clause
(a) of this sentence. The Company shall cause written notice to be delivered
to the registered holders of Warrants notifying such holders of the name and
address of any successor Warrant Agent. After appointment the successor
Warrant Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without
further act or deed; but the former Warrant Agent shall deliver and transfer to
the successor Warrant Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary
for the purpose. Failure to give any notice provided for in this Section 23,
however, or any defect therein, shall not affect the legality or validity of
the resignation or removal of the Warrant Agent or the appointment of the
successor Warrant Agent, as the case may be.
24. Identity of Transfer Agent. Forthwith upon the appointment
after the date hereof of any subsequent Transfer Agent for shares of the Common
Stock, the Company will file with the Warrant Agent a statement setting forth
the name and address of such Transfer Agent.
25. Successors. All covenants and provisions of this Agreement
by or for the benefit of the Company, the Warrant Agent or the holders of the
Warrants shall bind and inure to the benefit of their respective successors,
assigns, heirs and personal representatives. This Agreement and the covenants
contained herein shall not be assigned by operation of law or otherwise except
as otherwise specifically provided.
26. Termination. This Agreement shall terminate at 5:00 p.m.,
Eastern time, on the Expiration Date or such earlier date upon which all
Warrants have been exercised or redeemed, except that the Warrant Agent shall
account to the Company for all cash held by it at 5:00 p.m., Eastern time, on
such Expiration Date.
- 14 -
15
27. Governing Law. This Agreement and each Warrant Certificate
shall be governed by and construed in accordance with the laws of the State of
Delaware (without regard to principles of conflicts of law); provided, however,
that matters affecting the validity of corporate action taken by Olicom shall
be governed by the laws of the Kingdom of Denmark. Each of the parties hereto
irrevocably consents to the exclusive jurisdiction of any court located within
the State of Delaware in connection with any matter based upon or arising out
of this Agreement or the matters contemplated herein, agrees that process may
be served upon them in any manner authorized by the laws of the State of
Delaware for such persons and waives and covenants not to assert or plead any
objection which they might otherwise have to such jurisdiction and such
process.
28. Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same agreement.
29. Headings. The headings of sections of this Agreement have
been inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms or
provisions hereof.
30. Amendments. This Agreement may be amended by the written
consent of the Company and the affirmative vote or the written consent of
holders holding not less than two-thirds in interest of the then outstanding
Warrants; provided, however, that, except as expressly provided herein, this
Agreement may not be amended to change (a) the Exercise Price, (b) the period
during which the Warrants may be exercised, (c) the number or type of
securities to be issued upon the exercise of the Warrants, or (d) the
provisions of this Section 30, without the consent of each holder of the
Warrants. Notwithstanding the foregoing, the Company and the Warrant Agent may
from time to time supplement or amend this Agreement, without the approval of
any holder of Warrants, in order to cure any ambiguity or to correct or
supplement any provision contained in the Agreement which may be defective or
inconsistent with any other provision in this Agreement, or to make any other
provisions in regard to matters or questions arising under this Agreement which
the Company and the Warrant Agent may deem necessary or desirable and which
shall not be inconsistent with the provisions of the Warrants and which shall
not adversely affect the interests of the holders of Warrants.
31. Issuance of New Warrant Certificates. Notwithstanding any
of the provisions of this Agreement or the several Warrant Certificates to the
contrary, the Company may, at its option, issue new Warrant Certificates in
such form as may be approved by its Board of Directors to reflect any
adjustment or change in the Exercise Price or the number or kind of shares
purchasable under the several Warrant Certificates made in accordance with the
provisions of this Agreement.
32. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally or by
nationally recognized overnight delivery service, or sent via facsimile (with
confirmation of receipt) to the parties at the following address (or at such
other address for a party as shall be specified by like notice):
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If to the Company, to:
Olicom A/S
Nybrovej 114
XX-0000 Xxxxxx
Attn: Managing Director
Facsimile No.: x00 00 00 0000
Telephone No.: x00 00 00 0000
with a copy to:
Liddell, Sapp, Zivley, Hill & XxXxxx, L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the Warrant Agent, to:
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Notices by personal delivery or via nationally recognized overnight delivery
service shall be effective upon receipt. Telecopied notices shall be effective
on the date of receipt if received by 5:00 p.m. local time where received, and
on the next business day if received thereafter.
33. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation, other than the
Company, the Warrant Agent and the registered holders of the Warrants, any
legal or equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent and the registered holders of the Warrants.
34. Severability. In the event that any provision of this
Agreement, or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement shall continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further
agree to replace such void or unenforceable provision of this Agreement with a
valid and enforceable provision that will achieve,
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to the greatest extent possible, the economic, business and other purposes of
such void or unenforceable provision.
35. Remedies Cumulative. Except as otherwise provided herein,
any and all remedies herein expressly conferred upon a party shall be deemed
cumulative with and not exclusive of any other remedy conferred hereby, or by
law or equity upon such party, and the exercise by a party of any one remedy
shall not preclude the exercise of any other remedy.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the first date written above.
OLICOM A/S
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
AMERICAN STOCK TRANSFER & TRUST
COMPANY
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
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EXHIBIT A
__________________
No. of Warrant Shares
FORM OF WARRANT CERTIFICATE
NO. W-__
VOID AFTER ___________, 2000
WARRANT CERTIFICATE
FOR PURCHASE OF COMMON SHARES
OLICOM A/S
This certifies that FOR VALUE RECEIVED, _______________ is the
registered holder (the "Registered Holder") of a Warrant (the "Warrant") to
purchase the shares of common stock, nominal value DKK 0.25 per share (the
"Common Stock"), of Olicom A/S, a corporation organized under the laws of the
Kingdom of Denmark (the "Company"), specified above. This Warrant entitles the
Registered Holder, but only subject to the terms and conditions set forth
herein and in the Warrant Agreement (as hereinafter defined), to purchase the
number of fully paid and nonassessable shares (each a "Warrant Share") of
Common Stock indicated above at any time after issuance through the Expiration
Date (as hereinafter defined), upon presentation and surrender of this Warrant
Certificate and the form on the reverse hereof duly executed at the principal
office of American Stock Transfer & Trust Company, as warrant agent, or its
successor (the "Warrant Agent"), accompanied by payment of $19.74 per share of
Common Stock (the "Exercise Price") to be purchased hereunder in lawful money
of the United States of America by money order or certified or official bank
check made payable to the Company.
This Warrant Certificate and each Warrant represented hereby are
issued pursuant to, and are subject in all respects to the terms and conditions
set forth in, the Warrant Agreement, dated ______________, 1997 (the "Warrant
Agreement"), by and between the Company and the Warrant Agent.
Prior to the Expiration Date, upon the occurrence of certain events
provided for in the Warrant Agreement, the Exercise Price or the number of
shares of Common Stock subject to purchase upon the exercise of each Warrant
represented hereby are subject to modification or adjustment.
Each Warrant represented hereby is exercisable at the option of the
Registered Holder. In the case of the exercise of less than all of the
Warrants represented hereby, the Company shall
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cancel this Warrant Certificate upon the surrender hereof and shall execute and
deliver a new Warrant Certificate or Warrant Certificates, which the Warrant
Agent shall countersign, for the balance of such Warrants.
The "Expiration Date" shall mean ______________, 2000, or such earlier
date as all of the Warrants shall be exercised or redeemed. No Warrant may be
exercised after the 5:00 p.m., Eastern time, on the Expiration Date, and all
rights of the registered holders of the Warrants shall cease after 5:00 p.m.,
Eastern time, on the Expiration Date.
This Warrant Certificate is exchangeable upon surrender hereof by the
Registered Holder at the principal office of the Warrant Agent in New York, New
York, or the principal office of the Company in greater Copenhagen, Denmark,
for another Warrant Certificate or Warrant Certificates of like tenor and
representing in the aggregate the number of Warrants evidenced by the Warrant
Certificate or Warrant Certificates so surrendered.
Prior to due presentment for registration or transfer of this Warrant
Certificate, the Company and the Warrant Agent shall deem and treat the
Registered Holder hereof as the absolute owner of Warrants (notwithstanding any
notation of ownership or other writing on the Warrant Certificate made by
anyone other than the Company or the Warrant Agent), for the purpose of any
exercise thereof and for all other purposes, and no transfer or exchange will
be effective unless made in accordance with Sections 11 and 12 of the Warrant
Agreement, and neither the Company nor the Warrant Agent shall be affected by
any notice to the contrary.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
This Warrant Certificate is not valid unless countersigned by the
Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be signed by its duly authorized officers and has caused its corporate seal to
be affixed hereunto.
Dated: , 1997
------------------
OLICOM A/S
By:
------------------------------------
Its:
------------------------------------
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COUNTERSIGNED:
AMERICAN STOCK TRANSFER &
TRUST COMPANY, as warrant agent
By:_________________________________
Name: _____________________________
Authorized Office
FORM TO BE EXECUTED BY THE REGISTERED HOLDER IN ORDER TO EXERCISE
WARRANTS
The undersigned Registered Holder hereby irrevocably elects to
exercise Warrants represented by this Warrant Certificate, and to purchase the
securities issuable upon the exercise of such Warrants, and requests that
certificates for such securities shall be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
________________________
and be delivered to
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS)
and if such number of exercised Warrants shall not be all the Warrants
evidenced by this Warrant Certificate, that a new Warrant Certificate for the
balance of such Warrants be registered in the name of, and delivered to the
Registered Holder at the address stated below.
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Dated: ___________________ X ________________________________________
(Signature of Registered Holder)
__________________________________________
--------------------
__________________________________________
--------------------
__________________________________________
--------------------
(Please print or type name and address of
registered holder)
Signature Guarantee Stamp Required Here
if Securities are to be Delivered to a
Person Other Than Registered Holder
ASSIGNMENT
TO BE EXECUTED BY THE REGISTERED HOLDER
IN ORDER TO ASSIGN WARRANTS
FOR VALUE RECEIVED,_________________________ hereby sells, assigns and
transfers unto _______________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF TRANSFEREE
____________________________
(Please print or type name and address)
_______________________ of the Warrants represented by this Warrant
Certificate, and hereby irrevocably constitutes and appoints
___________________________, Attorney, to transfer the Warrant Certificate on
the books of the Company, with full power of substitution in the premises.
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Dated: X____________________________________
--------------------------
(Signature of Registered Holder)
Signature Guarantee Stamp Required Here
THE SIGNATURE TO THE ASSIGNMENT OR THE SUBSCRIPTION FORM MUST CORRESPOND TO THE
NAME AS WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND ALL REQUIRED
SIGNATURE GUARANTEES MUST BE PROVIDED BY A MEMBER OF THE MEDALLION STAMP
PROGRAM.
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