EXHIBIT 2.2
COMMON STOCK PURCHASE WARRANT
THIS WARRANT HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS, AND NO SALE
OR TRANSFER HEREOF MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT OR AN OPINION
OF COUNSEL FOR THE HOLDER, SATISFACTORY TO THE
COMPANY, THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
No. W-1 Right to Purchase 175,000 Shares of
Common Stock of XxXxxx Corporation
XXXXXX CORPORATION
Common Stock Purchase Warrant
XxXxxx Corporation, a Delaware corporation (the "Company"), hereby
certifies that, for value received, Advent Global GECC III Limited Partnership,
or registered permitted assigns, is entitled, subject to the terms set forth
below, to purchase from the Company at any time or from time to time before
5:00 P.M., Boston time, on June 30, 2006 fully paid and nonassessable shares of
common stock, par value $.01 per share, of the Company ("Common Stock"), at a
exercise price per share of $20.00 (such exercise price per share as adjusted
from time to time as herein provided is referred to herein as the "Exercise
Price"). The number and character of such shares of Common Stock and the
Exercise Price are subject to adjustment as provided herein.
This Warrant is one of a series of Common Stock Purchase Warrants (the
"Warrants") evidencing the right to purchase shares of Common Stock of the
Company, issued pursuant to a certain Securities Purchase Agreement (the
"Agreement"), dated as of June 30, 1999, between the Company and the Purchasers
(as defined therein), a copy of which is on file at the principal office of the
Company. The holder of this Warrant shall be entitled to all of the benefits of
the Agreement, as provided therein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" shall include XxXxxx Corporation and any
corporation which shall succeed or assume the obligations of the Company
hereunder.
(b) The term "Common Stock" includes the Company's Common Stock, $.01 par
value per share, as authorized on the date of the Agreement and any other
securities into which or for which any of such Common Stock may be converted or
exchanged pursuant to a plan of recapitalization, reorganization, merger, sale
of assets or otherwise.
1. Exercise of Warrant.
1.1. Full Exercise. This Warrant may be exercised at any time at the
Option of the holder hereof in full by such holder by surrender of this
Warrant, with the form of subscription at the end hereof duly executed by such
holder, to the Company at its principal office, accompanied by payment, in cash
or by certified or official bank check payable to the order of the Company, in
the amount obtained by multiplying the number of shares of Common Stock for
which this Warrant is then exercisable by the Exercise Price then in effect.
1.2. Partial Exercise. This Warrant may be exercised at any time in
the sole discretion of the holder hereof in part by surrender of this Warrant
in the manner and at the place provided in Section 1.1 except that the amount
payable by the holder on such partial exercise shall be the amount obtained by
multiplying (a) the number of shares of Common Stock designated by the holder
in the subscription at the end hereof by (b) the Exercise Price then in effect.
On any such partial exercise the Company at its expense will forthwith issue
and deliver to or upon the order of the holder hereof a new Warrant or Warrants
of like tenor, in the name of the holder hereof or as such holder (upon payment
by such holder of any applicable transfer taxes) may request, calling in the
aggregate on the face or faces thereof for the number of shares of Common Stock
for which such Warrant or Warrants may still be exercised.
1.3 Net Issue Election. The holder hereof may elect to receive,
without the payment by such holder of any additional consideration, shares of
Common Stock equal to the value of this Warrant or any portion hereof by the
surrender of this Warrant or such portion to the Company, with the form of
subscription at the end hereof duly executed by such holder, at the principal
office of the Company. Thereupon, the Company shall issue to such holder such
number of fully paid and nonassessable shares of Common Stock as is computed
using the following formula:
X = Y (A-B)
A
where X = the number of shares to be issued to such holder pursuant to this
Section 1.3;
Y = the number of shares covered by this Warrant in respect of which the
net issue election is made pursuant to this Section 1.3;
A = the fair market value of one share of Common Stock, as determined in
accordance with the following provisions, as at the time the net issue election
is made pursuant to this Section 1.3; and
B = the Exercise Price in effect under this Warrant at the time the net
issue election is made pursuant to this Section 1.3.
For purposes of this Section 1.3, "fair market value" of one (1) share of
Common Stock shall be determined as follows:
(1) Where there exists a public market for the Company's Common
Stock at the time of such exercise, the fair market value per share
shall be the average of the closing bid and asked prices of the
Common Stock quoted in the Over-The-Counter Market Summary or the
last reported sale price of the Common Stock or the closing price
quoted on the NASDAQ System or on any exchange on which the Common
Stock is listed, whichever is applicable, as published in The Wall
Street Journal for the five (5) trading days prior to the date of
determination of fair market value. Notwithstanding the foregoing, in
the event the Warrants are exercised in connection with the Company's
secondary public offering of Common Stock, the fair market value per
share shall be the per share offering price to the public of the
Company's secondary public offering.
(2) If no public market for the Common Stock exists at the time
of such exercise, the Company and the holder hereof shall negotiate
in good faith in an effort to reach agreement upon the fair market
value of one share of Common Stock for a period of ten (10) days
after delivery of the executed subscription.
(3) If the Company and the holder hereof are unable to reach
agreement under the foregoing subparagraph (2), the fair market value
of one share of Common Stock shall be determined by appraisal. The
Company and the holder hereof shall each select an appraiser (the
"Selected Appraisers") within thirty (30) days after the expiration
of the ten-day period in subparagraph (2) above. Each Selected
Appraiser shall render its appraisal within thirty (30) days of its
appointment hereunder. In the event that either Selected Appraiser
fails to render an appraisal within such thirty-day period, the first
appraisal rendered shall be conclusive. In the event that the values
determined by the Selected Appraisers differ by less than ten percent
(10%) of the lower value, the fair market value shall be the average
of the appraisals made by each of the Selected Appraisers. In the
event that the values differ by ten percent (10%) or more of the
lower value, the Selected Appraisers shall within ten (10) days
select a third appraiser (the "Neutral Appraiser") to conduct an
appraisal. The Neutral Appraiser shall render its appraisal within
thirty (30) days of its appointment hereunder. The fair market value
of one share of Common Stock shall be equal to the appraisal made by
the Neutral Appraiser if such appraisal is between the two appraisals
made by the Selected Appraisers or, if such appraisal by the Neutral
Appraiser is not between the two appraisals made by the Selected
Appraisers, then the fair market value of one share of Common Stock
shall be that one of the two appraisals made by the Selected
Appraisers that is closer to the appraisal made by the Neutral
Appraiser. All appraisals delivered pursuant to this subparagraph (3)
shall be in writing and signed by the appraiser. The fees, costs and
expenses of each of the Selected Appraisers will be borne by the
party who selected such appraiser, and the fees, costs and expenses
of the Neutral Appraiser will be borne equally by the Company and the
holder hereof.
(4) In appraising the fair market value of one share of Common
Stock, there shall be no discount for minority interests.
(5) The fair market value as determined in accordance with this
Section 1.3 shall be conclusive, final and binding upon the Company
and the holder hereof, and shall be enforceable in any court having
jurisdiction over a proceeding to enforce the terms of this Warrant.
1.4. Trustee for Warrant Holders. In the event that a bank or trust
company shall have been appointed as trustee for the holders of the Warrants
pursuant to Section 4.2, such bank or trust company shall have all the powers
and duties of a warrant agent appointed pursuant to Section 12 and shall
accept, in its own name for the account of the Company or such successor person
as may be entitled thereto, all amounts otherwise payable to the Company or
such successor, as the case may be, on exercise of this Warrant pursuant to
this Section 1.
2. Delivery of Stock Certificates, etc. on Exercise. As soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within ten (10) days thereafter, the Company at its expense (including
the payment by it of any applicable issue taxes) will cause to be issued in the
name of and delivered to the holder hereof, or as such holder (upon payment by
such holder of any applicable transfer taxes and, if requested by the Company,
demonstration by such holder of compliance with applicable securities laws) may
direct, a certificate or certificates for the number of fully paid and
nonassessable shares of Common Stock to which such holder shall be entitled on
such exercise, plus, in lieu of any fractional share to which such holder would
otherwise be entitled, cash equal to such fraction multiplied by the then
current market value of one full share, together with any other stock or other
securities and property (including cash, where applicable) to which such holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustment for Dividends in Other Stock, Property, etc.;
Reclassification, etc. In case at any time or from time to time, the holders of
Common Stock shall have received, or (on or after the record date fixed for the
determination of shareholders eligible to receive) shall have become entitled
to receive, without payment therefor,
(a) other or additional stock or other securities or property (other
than cash) by way of dividend, or
(b) any cash (excluding cash dividends payable solely out of earnings
or earned surplus of the Company), or
(c) other or additional stock or other securities or property
(including cash) by way of spin-off, split-up, reclassification,
recapitalization, combination of shares or similar corporate
rearrangement,
other than additional shares of Common Stock issued as a stock dividend or in a
stock-split (adjustments in respect of which are provided for in Section 5.3),
then and in each such case the holder of this Warrant, on the exercise hereof
as provided in Section 1, shall be entitled to receive the amount of stock and
other securities and property (including cash in the cases referred to in
clauses (b) and (c) of this Section 3) which such holder would hold on the date
of such exercise if on the date hereof he had been the holder of record of the
number of shares of Common Stock called for on the face of this Warrant and had
thereafter, during the period from the date hereof to and including the date of
such exercise, retained such shares and all such other or additional stock and
other securities and property (including cash in the cases referred to in
clauses (b) and (c) of this Section 3) receivable by him as aforesaid during
such period, giving effect to all adjustments called for during such period by
Sections 4 and 5.
4. Adjustment for Reorganization, Consolidation, Merger, etc.
4.1. Reorganization. In case at any time or from time to time, the
Company shall (a) effect a reorganization, (b) consolidate with or merge into
any other person, or (c) transfer all or substantially all of its properties or
assets to any other person under any plan or arrangement contemplating the
dissolution of the Company, then, in each such case, the holder of this
Warrant, on the exercise hereof as provided in Section 1 at any time after the
consummation of such reorganization, consolidation or merger or the effective
date of such dissolution as the case may be, shall receive, in lieu of the
Common Stock issuable on such exercise prior to such consummation or such
effective date, the stock and other securities and property (including cash) to
which such holder would have been entitled upon such consummation or in
connection with such dissolution, as the case may be, if such holder had so
exercised this Warrant immediately prior thereto, all subject to further
adjustment thereafter as provided in Sections 3 and 5.
4.2. Dissolution. In the event of any dissolution of the Company
following the transfer of all or substantially all of its properties or assets,
the Company, prior to such dissolution, shall at its expense deliver or cause
to be delivered the stock and other securities and property (including cash,
where applicable) receivable by the holders of the Warrants after the effective
date of such dissolution pursuant to this Section 4 to a bank or trust company
having its principal office in Boston, Massachusetts, as trustee for the holder
or holders of the Warrants.
4.3 Continuation of Terms. Upon any reorganization, consolidation,
merger or transfer (and any dissolution following any transfer) referred to in
this Section 4, this Warrant shall continue in full force and effect and the
terms hereof shall be applicable to the shares of stock and other securities
and property receivable on the exercise of this Warrant after the consummation
of such reorganization, consolidation or merger or the effective date of
dissolution following any such transfer, as the case may be, and shall be
binding upon the issuer of any such stock or other securities, including, in
the case of any such transfer, the person acquiring all or substantially all of
the properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant as provided in Section 6.
5. Extraordinary Events. In the event that the Company shall (i) issue
additional shares of the Common Stock as a dividend or other distribution on
outstanding Common Stock, (ii) subdivide its outstanding shares of Common
Stock, or (iii) combine its outstanding shares of the Common Stock into a
smaller number of shares of the Common Stock, then, in each such event, the
Exercise Price shall, simultaneously with the happening of such event, be
adjusted by multiplying the then Exercise Price by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding immediately
prior to such event and the denominator of which shall be the number of shares
of Common Stock outstanding immediately after such event, and the product so
obtained shall thereafter be the Exercise Price then in effect. The Exercise
Price, as so adjusted, shall be readjusted in the same manner upon the
happening of any successive event or events described herein in this Section 5.
The holder of this Warrant shall thereafter, on the exercise hereof as provided
in Section 1, be entitled to receive that number of shares of Common Stock
determined by multiplying the number of shares of Common Stock which would
otherwise (but for the provisions of this Section 5) be issuable on such
exercise by a fraction of which (i) the numerator is the Exercise Price which
would otherwise (but for the provisions of this Section 5) be in effect, and
(ii) the denominator is the Exercise Price in effect on the date of such
exercise.
6. No Dilution or Impairment. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms of the Warrants, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the holders of the
Warrants against dilution or other impairment. Without limiting the generality
of the foregoing, the Company (a) will not increase the par value of any shares
of stock receivable on the exercise of the Warrants above the amount payable
therefor on such exercise, (b) will take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of stock on the exercise of all Warrants from time to
time outstanding, and (c) will not transfer all or substantially all of its
properties and assets to any other person (corporate or otherwise), or
consolidate with or merge into any other person or permit any such person to
consolidate with or merge into the Company (if the Company is not the surviving
person), unless such other person shall expressly assume in writing and will be
bound by all the terms of the Warrants.
7. Accountants' Certificate as to Adjustments. In each case of any
adjustment or readjustment in the shares of Common Stock issuable on the
exercise of the Warrants, the Company at its expense will promptly cause its
Chief Financial Officer or, if the holder of a Warrant so requests, independent
certified public accountants of recognized standing selected by the Company to
compute such adjustment or readjustment in accordance with the terms of the
Warrants and prepare a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based, including a statement of (a) the consideration received
or receivable by the Company for any additional shares of Common Stock issued
or sold or deemed to have been issued or sold, (b) the number of shares of
Common Stock outstanding or deemed to be outstanding, and (c) the Exercise
Price and the number of shares of Common Stock to be received upon exercise of
this Warrant, in effect immediately prior to such issue or sale and as adjusted
and readjusted as provided in this Warrant. The Company will forthwith mail a
copy of each such certificate to each holder of a Warrant, and will, on the
written request at any time of any holder of a Warrant, furnish to such holder
a like certificate setting forth the Exercise Price at the time in effect and
showing how it was calculated.
8. Notices of Record Date, etc. In the event of
(a) any taking by the Company of a record of the holders of any class
or securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities or property, or to receive any other right,
or
(b) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company or any transfer of
all or substantially all the assets of the Company to or consolidation or
merger of the Company with or into any other person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company, or
(d) any proposed issue or grant by the Company of any shares of stock
of any class or any other securities, or any right or option to subscribe
for, purchase or otherwise acquire any shares of stock of any class or any
other securities (other than the issue of Common Stock on the exercise of
the Warrants),
then and in each such event the Company will mail or cause to be mailed to each
registered holder of a Warrant a notice specifying (i) the date on which any
such record is to be taken for the purpose of such dividend, distribution or
right, and stating the amount and character of such dividend, distribution or
right, (ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock shall be entitled to exchange their
shares of Common Stock for securities or other property deliverable on such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up, and (iii) the amount and
character of any stock or other securities, or rights or options with respect
thereto, proposed to be issued or granted, the date of such proposed issue or
grant and the persons or class of persons to whom such proposed issue or grant
is to be offered or made. Such notice shall be mailed at least 20 days prior to
the date specified in such notice on which any such action is to be taken.
9. Reservation of Stock, etc., Issuable on Exercise of Warrants. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of the Warrants, all shares of Common Stock from time
to time issuable on the exercise of the Warrants.
10. Exchange of Warrants. On surrender for exchange of any Warrant,
properly endorsed, to the Company, the Company at its expense will issue and
deliver to or on the order of the holder thereof a new Warrant or warrants of
like tenor, in the name of such holder or as such holder (upon payment by such
holder of any applicable transfer taxes and, if requested by the Company,
demonstration by such holder of compliance with applicable securities laws) may
direct, calling in the aggregate on the face or faces thereof for the number of
shares of Common Stock called for on the face or faces of the Warrant or
Warrants so surrendered.
11. Replacement of Warrants. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
any Warrant and, in the case of any such loss, theft or destruction of any
Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such warrant, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
12. Warrant Agent. The Company may, by written notice to each holder of a
Warrant, appoint an agent having an office in either Boston, Massachusetts or
New York, New York for the purpose of issuing Common Stock on the exercise of
the Warrants pursuant to Section 1, exchanging Warrants pursuant to Section 10,
and replacing Warrants pursuant to Section 11, or any of the foregoing, and
thereafter any such issuance, exchange or replacement, as the case may be,
shall be made at such office by such agent.
13. Remedies. The Company stipulates that the remedies at law of the
holder of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
14. Negotiability, etc. This Warrant is issued upon the following terms,
to all of which each holder or owner hereof by the taking hereof consents and
agrees:
(a) subject to compliance with all applicable securities laws, title
to this Warrant may be transferred by endorsement (by the holder hereof
executing the form of assignment at the end hereof) and delivery in the
same manner as in the case of a negotiable instrument transferable by
endorsement and delivery;
(b) any person in possession of this Warrant properly endorsed is
authorized to represent himself as absolute owner hereof and is empowered
to transfer absolute title hereto by endorsement and delivery hereof to a
bona fide purchaser hereof for value; each prior taker or owner waives and
renounces all of his equities or rights in this Warrant in favor of each
such bona fide purchaser, and each such bona fide purchaser shall acquire
absolute title hereto and to all rights represented hereby; and
(c) until this Warrant is transferred on the books of the Company,
the Company may treat the registered holder hereof as the absolute owner
hereof for all purposes, notwithstanding any notice to the contrary.
15. Notices, etc. All notices and other communications from the Company to
the holder of this Warrant shall be mailed by first class registered or
certified mail, postage prepaid, at such address as may have been furnished to
the Company in writing by such holder or, until any such holder furnishes to
the Company an address, then to, and at the address of, the last holder of this
Warrant who has so furnished an address to the Company.
16. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or
termination is sought. This Warrant shall be construed and enforced in
accordance with and governed by the laws of The Commonwealth of Massachusetts.
The headings in this Warrant are for purposes of reference only, and shall not
limit or otherwise affect any of the terms hereof. This Warrant is being
executed as an instrument under seal. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
17. Expiration; Automatic Exercise. The right to exercise this Warrant
shall expire at 5:00 P.M., Boston time, on June 30, 2006. Notwithstanding the
foregoing, this Warrant shall automatically be deemed to be exercised in full
pursuant to the provisions of Section 1.3 hereof, without any further action on
behalf of the holder hereof, immediately prior to the time this Warrant would
otherwise expire pursuant to the preceding sentence.
Dated: June 30, 1999 XXXXXX CORPORATION
/s/ Xxxx X. Xxxx_____________
Xxxx X. Xxxx
Vice President - Finance, Chief Financial Officer,
Treasurer and Secretary
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
TO: XxXxxx Corporation
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder__________shares
of Common Stock of XxXxxx Corporation and herewith makes payment of $__________
therefor, and requests that the certificates for such shares be issued in the
name of, and delivered to whose address is
_________________________
Dated: ____________________________________________
(Signature must conform to name of holder as
specified on the face of the Warrant)
------------------------------
FORM OF ASSIGNMENT
(To be signed only on transfer of warrant)
For value received, the undersigned hereby sells, assigns, and transfers
unto ...................... the right represented by the within Warrant to
purchase shares of Common Stock of XxXxxx Corporation to which the within
Warrant relates, and appoints ____________________ Attorney to transfer such
right on the books of XxXxxx Corporation with full power of substitution in the
premises.
Dated: ____________________________________________
(Signature must conform to name of holder as
specified on the face of the Warrant)
________________________________________
(Address)
Signed in the presence of:
______________________________
EXHIBIT 2.2
COMMON STOCK PURCHASE WARRANT
THIS WARRANT HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS, AND NO SALE
OR TRANSFER HEREOF MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT OR AN OPINION
OF COUNSEL FOR THE HOLDER, SATISFACTORY TO THE
COMPANY, THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
No. W-2 Right to Purchase 35,625 Shares of
Common Stock of XxXxxx Corporation
XXXXXX CORPORATION
Common Stock Purchase Warrant
XxXxxx Corporation, a Delaware corporation (the "Company"), hereby
certifies that, for value received, EnviroTech Investment Fund I Limited
Partnership, or registered permitted assigns, is entitled, subject to the terms
set forth below, to purchase from the Company at any time or from time to time
before 5:00 P.M., Boston time, on June 30, 2006 fully paid and nonassessable
shares of common stock, par value $.01 per share, of the Company ("Common
Stock"), at a exercise price per share of $20.00 (such exercise price per share
as adjusted from time to time as herein provided is referred to herein as the
"Exercise Price"). The number and character of such shares of Common Stock and
the Exercise Price are subject to adjustment as provided herein.
This Warrant is one of a series of Common Stock Purchase Warrants (the
"Warrants") evidencing the right to purchase shares of Common Stock of the
Company, issued pursuant to a certain Securities Purchase Agreement (the
"Agreement"), dated as of June 30, 1999, between the Company and the Purchasers
(as defined therein), a copy of which is on file at the principal office of the
Company. The holder of this Warrant shall be entitled to all of the benefits of
the Agreement, as provided therein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" shall include XxXxxx Corporation and any
corporation which shall succeed or assume the obligations of the Company
hereunder.
(b) The term "Common Stock" includes the Company's Common Stock, $.01 par
value per share, as authorized on the date of the Agreement and any other
securities into which or for which any of such Common Stock may be converted or
exchanged pursuant to a plan of recapitalization, reorganization, merger, sale
of assets or otherwise.
1. Exercise of Warrant.
1.1. Full Exercise. This Warrant may be exercised at any time at the
Option of the holder hereof in full by such holder by surrender of this
Warrant, with the form of subscription at the end hereof duly executed by such
holder, to the Company at its principal office, accompanied by payment, in cash
or by certified or official bank check payable to the order of the Company, in
the amount obtained by multiplying the number of shares of Common Stock for
which this Warrant is then exercisable by the Exercise Price then in effect.
1.2. Partial Exercise. This Warrant may be exercised at any time in
the sole discretion of the holder hereof in part by surrender of this Warrant
in the manner and at the place provided in Section 1.1 except that the amount
payable by the holder on such partial exercise shall be the amount obtained by
multiplying (a) the number of shares of Common Stock designated by the holder
in the subscription at the end hereof by (b) the Exercise Price then in effect.
On any such partial exercise the Company at its expense will forthwith issue
and deliver to or upon the order of the holder hereof a new Warrant or Warrants
of like tenor, in the name of the holder hereof or as such holder (upon payment
by such holder of any applicable transfer taxes) may request, calling in the
aggregate on the face or faces thereof for the number of shares of Common Stock
for which such Warrant or Warrants may still be exercised.
1.3 Net Issue Election. The holder hereof may elect to receive,
without the payment by such holder of any additional consideration, shares of
Common Stock equal to the value of this Warrant or any portion hereof by the
surrender of this Warrant or such portion to the Company, with the form of
subscription at the end hereof duly executed by such holder, at the principal
office of the Company. Thereupon, the Company shall issue to such holder such
number of fully paid and nonassessable shares of Common Stock as is computed
using the following formula:
X = Y (A-B)
A
where X = the number of shares to be issued to such holder pursuant to this
Section 1.3;
Y = the number of shares covered by this Warrant in respect of which the
net issue election is made pursuant to this Section 1.3;
A = the fair market value of one share of Common Stock, as determined in
accordance with the following provisions, as at the time the net issue election
is made pursuant to this Section 1.3; and
B = the Exercise Price in effect under this Warrant at the time the net
issue election is made pursuant to this Section 1.3.
For purposes of this Section 1.3, "fair market value" of one (1) share of
Common Stock shall be determined as follows:
(1) Where there exists a public market for the Company's Common
Stock at the time of such exercise, the fair market value per share
shall be the average of the closing bid and asked prices of the
Common Stock quoted in the Over-The-Counter Market Summary or the
last reported sale price of the Common Stock or the closing price
quoted on the NASDAQ System or on any exchange on which the Common
Stock is listed, whichever is applicable, as published in The Wall
Street Journal for the five (5) trading days prior to the date of
determination of fair market value. Notwithstanding the foregoing, in
the event the Warrants are exercised in connection with the Company's
secondary public offering of Common Stock, the fair market value per
share shall be the per share offering price to the public of the
Company's secondary public offering.
(2) If no public market for the Common Stock exists at the time
of such exercise, the Company and the holder hereof shall negotiate
in good faith in an effort to reach agreement upon the fair market
value of one share of Common Stock for a period of ten (10) days
after delivery of the executed subscription.
(3) If the Company and the holder hereof are unable to reach
agreement under the foregoing subparagraph (2), the fair market value
of one share of Common Stock shall be determined by appraisal. The
Company and the holder hereof shall each select an appraiser (the
"Selected Appraisers") within thirty (30) days after the expiration
of the ten-day period in subparagraph (2) above. Each Selected
Appraiser shall render its appraisal within thirty (30) days of its
appointment hereunder. In the event that either Selected Appraiser
fails to render an appraisal within such thirty-day period, the first
appraisal rendered shall be conclusive. In the event that the values
determined by the Selected Appraisers differ by less than ten percent
(10%) of the lower value, the fair market value shall be the average
of the appraisals made by each of the Selected Appraisers. In the
event that the values differ by ten percent (10%) or more of the
lower value, the Selected Appraisers shall within ten (10) days
select a third appraiser (the "Neutral Appraiser") to conduct an
appraisal. The Neutral Appraiser shall render its appraisal within
thirty (30) days of its appointment hereunder. The fair market value
of one share of Common Stock shall be equal to the appraisal made by
the Neutral Appraiser if such appraisal is between the two appraisals
made by the Selected Appraisers or, if such appraisal by the Neutral
Appraiser is not between the two appraisals made by the Selected
Appraisers, then the fair market value of one share of Common Stock
shall be that one of the two appraisals made by the Selected
Appraisers that is closer to the appraisal made by the Neutral
Appraiser. All appraisals delivered pursuant to this subparagraph (3)
shall be in writing and signed by the appraiser. The fees, costs and
expenses of each of the Selected Appraisers will be borne by the
party who selected such appraiser, and the fees, costs and expenses
of the Neutral Appraiser will be borne equally by the Company and the
holder hereof.
(4) In appraising the fair market value of one share of Common
Stock, there shall be no discount for minority interests.
(5) The fair market value as determined in accordance with this
Section 1.3 shall be conclusive, final and binding upon the Company
and the holder hereof, and shall be enforceable in any court having
jurisdiction over a proceeding to enforce the terms of this Warrant.
1.4. Trustee for Warrant Holders. In the event that a bank or trust
company shall have been appointed as trustee for the holders of the Warrants
pursuant to Section 4.2, such bank or trust company shall have all the powers
and duties of a warrant agent appointed pursuant to Section 12 and shall
accept, in its own name for the account of the Company or such successor person
as may be entitled thereto, all amounts otherwise payable to the Company or
such successor, as the case may be, on exercise of this Warrant pursuant to
this Section 1.
2. Delivery of Stock Certificates, etc. on Exercise. As soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within ten (10) days thereafter, the Company at its expense (including
the payment by it of any applicable issue taxes) will cause to be issued in the
name of and delivered to the holder hereof, or as such holder (upon payment by
such holder of any applicable transfer taxes and, if requested by the Company,
demonstration by such holder of compliance with applicable securities laws) may
direct, a certificate or certificates for the number of fully paid and
nonassessable shares of Common Stock to which such holder shall be entitled on
such exercise, plus, in lieu of any fractional share to which such holder would
otherwise be entitled, cash equal to such fraction multiplied by the then
current market value of one full share, together with any other stock or other
securities and property (including cash, where applicable) to which such holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustment for Dividends in Other Stock, Property, etc.;
Reclassification, etc. In case at any time or from time to time, the holders of
Common Stock shall have received, or (on or after the record date fixed for the
determination of shareholders eligible to receive) shall have become entitled
to receive, without payment therefor,
(a) other or additional stock or other securities or property (other
than cash) by way of dividend, or
(b) any cash (excluding cash dividends payable solely out of earnings
or earned surplus of the Company), or
(c) other or additional stock or other securities or property
(including cash) by way of spin-off, split-up, reclassification,
recapitalization, combination of shares or similar corporate
rearrangement,
other than additional shares of Common Stock issued as a stock dividend or in a
stock-split (adjustments in respect of which are provided for in Section 5.3),
then and in each such case the holder of this Warrant, on the exercise hereof
as provided in Section 1, shall be entitled to receive the amount of stock and
other securities and property (including cash in the cases referred to in
clauses (b) and (c) of this Section 3) which such holder would hold on the date
of such exercise if on the date hereof he had been the holder of record of the
number of shares of Common Stock called for on the face of this Warrant and had
thereafter, during the period from the date hereof to and including the date of
such exercise, retained such shares and all such other or additional stock and
other securities and property (including cash in the cases referred to in
clauses (b) and (c) of this Section 3) receivable by him as aforesaid during
such period, giving effect to all adjustments called for during such period by
Sections 4 and 5.
4. Adjustment for Reorganization, Consolidation, Merger, etc.
4.1. Reorganization. In case at any time or from time to time, the
Company shall (a) effect a reorganization, (b) consolidate with or merge into
any other person, or (c) transfer all or substantially all of its properties or
assets to any other person under any plan or arrangement contemplating the
dissolution of the Company, then, in each such case, the holder of this
Warrant, on the exercise hereof as provided in Section 1 at any time after the
consummation of such reorganization, consolidation or merger or the effective
date of such dissolution as the case may be, shall receive, in lieu of the
Common Stock issuable on such exercise prior to such consummation or such
effective date, the stock and other securities and property (including cash) to
which such holder would have been entitled upon such consummation or in
connection with such dissolution, as the case may be, if such holder had so
exercised this Warrant immediately prior thereto, all subject to further
adjustment thereafter as provided in Sections 3 and 5.
4.2. Dissolution. In the event of any dissolution of the Company
following the transfer of all or substantially all of its properties or assets,
the Company, prior to such dissolution, shall at its expense deliver or cause
to be delivered the stock and other securities and property (including cash,
where applicable) receivable by the holders of the Warrants after the effective
date of such dissolution pursuant to this Section 4 to a bank or trust company
having its principal office in Boston, Massachusetts, as trustee for the holder
or holders of the Warrants.
4.3 Continuation of Terms. Upon any reorganization, consolidation,
merger or transfer (and any dissolution following any transfer) referred to in
this Section 4, this Warrant shall continue in full force and effect and the
terms hereof shall be applicable to the shares of stock and other securities
and property receivable on the exercise of this Warrant after the consummation
of such reorganization, consolidation or merger or the effective date of
dissolution following any such transfer, as the case may be, and shall be
binding upon the issuer of any such stock or other securities, including, in
the case of any such transfer, the person acquiring all or substantially all of
the properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant as provided in Section 6.
5. Extraordinary Events. In the event that the Company shall (i) issue
additional shares of the Common Stock as a dividend or other distribution on
outstanding Common Stock, (ii) subdivide its outstanding shares of Common
Stock, or (iii) combine its outstanding shares of the Common Stock into a
smaller number of shares of the Common Stock, then, in each such event, the
Exercise Price shall, simultaneously with the happening of such event, be
adjusted by multiplying the then Exercise Price by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding immediately
prior to such event and the denominator of which shall be the number of shares
of Common Stock outstanding immediately after such event, and the product so
obtained shall thereafter be the Exercise Price then in effect. The Exercise
Price, as so adjusted, shall be readjusted in the same manner upon the
happening of any successive event or events described herein in this Section 5.
The holder of this Warrant shall thereafter, on the exercise hereof as provided
in Section 1, be entitled to receive that number of shares of Common Stock
determined by multiplying the number of shares of Common Stock which would
otherwise (but for the provisions of this Section 5) be issuable on such
exercise by a fraction of which (i) the numerator is the Exercise Price which
would otherwise (but for the provisions of this Section 5) be in effect, and
(ii) the denominator is the Exercise Price in effect on the date of such
exercise.
6. No Dilution or Impairment. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms of the Warrants, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the holders of the
Warrants against dilution or other impairment. Without limiting the generality
of the foregoing, the Company (a) will not increase the par value of any shares
of stock receivable on the exercise of the Warrants above the amount payable
therefor on such exercise, (b) will take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of stock on the exercise of all Warrants from time to
time outstanding, and (c) will not transfer all or substantially all of its
properties and assets to any other person (corporate or otherwise), or
consolidate with or merge into any other person or permit any such person to
consolidate with or merge into the Company (if the Company is not the surviving
person), unless such other person shall expressly assume in writing and will be
bound by all the terms of the Warrants.
7. Accountants' Certificate as to Adjustments. In each case of any
adjustment or readjustment in the shares of Common Stock issuable on the
exercise of the Warrants, the Company at its expense will promptly cause its
Chief Financial Officer or, if the holder of a Warrant so requests, independent
certified public accountants of recognized standing selected by the Company to
compute such adjustment or readjustment in accordance with the terms of the
Warrants and prepare a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based, including a statement of (a) the consideration received
or receivable by the Company for any additional shares of Common Stock issued
or sold or deemed to have been issued or sold, (b) the number of shares of
Common Stock outstanding or deemed to be outstanding, and (c) the Exercise
Price and the number of shares of Common Stock to be received upon exercise of
this Warrant, in effect immediately prior to such issue or sale and as adjusted
and readjusted as provided in this Warrant. The Company will forthwith mail a
copy of each such certificate to each holder of a Warrant, and will, on the
written request at any time of any holder of a Warrant, furnish to such holder
a like certificate setting forth the Exercise Price at the time in effect and
showing how it was calculated.
8. Notices of Record Date, etc. In the event of
(a) any taking by the Company of a record of the holders of any class
or securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities or property, or to receive any other right,
or
(b) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company or any transfer of
all or substantially all the assets of the Company to or consolidation or
merger of the Company with or into any other person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company, or
(d) any proposed issue or grant by the Company of any shares of stock
of any class or any other securities, or any right or option to subscribe
for, purchase or otherwise acquire any shares of stock of any class or any
other securities (other than the issue of Common Stock on the exercise of
the Warrants),
then and in each such event the Company will mail or cause to be mailed to each
registered holder of a Warrant a notice specifying (i) the date on which any
such record is to be taken for the purpose of such dividend, distribution or
right, and stating the amount and character of such dividend, distribution or
right, (ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock shall be entitled to exchange their
shares of Common Stock for securities or other property deliverable on such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up, and (iii) the amount and
character of any stock or other securities, or rights or options with respect
thereto, proposed to be issued or granted, the date of such proposed issue or
grant and the persons or class of persons to whom such proposed issue or grant
is to be offered or made. Such notice shall be mailed at least 20 days prior to
the date specified in such notice on which any such action is to be taken.
9. Reservation of Stock, etc., Issuable on Exercise of Warrants. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of the Warrants, all shares of Common Stock from time
to time issuable on the exercise of the Warrants.
10. Exchange of Warrants. On surrender for exchange of any Warrant,
properly endorsed, to the Company, the Company at its expense will issue and
deliver to or on the order of the holder thereof a new Warrant or warrants of
like tenor, in the name of such holder or as such holder (upon payment by such
holder of any applicable transfer taxes and, if requested by the Company,
demonstration by such holder of compliance with applicable securities laws) may
direct, calling in the aggregate on the face or faces thereof for the number of
shares of Common Stock called for on the face or faces of the Warrant or
Warrants so surrendered.
11. Replacement of Warrants. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
any Warrant and, in the case of any such loss, theft or destruction of any
Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such warrant, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
12. Warrant Agent. The Company may, by written notice to each holder of a
Warrant, appoint an agent having an office in either Boston, Massachusetts or
New York, New York for the purpose of issuing Common Stock on the exercise of
the Warrants pursuant to Section 1, exchanging Warrants pursuant to Section 10,
and replacing Warrants pursuant to Section 11, or any of the foregoing, and
thereafter any such issuance, exchange or replacement, as the case may be,
shall be made at such office by such agent.
13. Remedies. The Company stipulates that the remedies at law of the
holder of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
14. Negotiability, etc. This Warrant is issued upon the following terms,
to all of which each holder or owner hereof by the taking hereof consents and
agrees:
(a) subject to compliance with all applicable securities laws, title
to this Warrant may be transferred by endorsement (by the holder hereof
executing the form of assignment at the end hereof) and delivery in the
same manner as in the case of a negotiable instrument transferable by
endorsement and delivery;
(b) any person in possession of this Warrant properly endorsed is
authorized to represent himself as absolute owner hereof and is empowered
to transfer absolute title hereto by endorsement and delivery hereof to a
bona fide purchaser hereof for value; each prior taker or owner waives and
renounces all of his equities or rights in this Warrant in favor of each
such bona fide purchaser, and each such bona fide purchaser shall acquire
absolute title hereto and to all rights represented hereby; and
(c) until this Warrant is transferred on the books of the Company,
the Company may treat the registered holder hereof as the absolute owner
hereof for all purposes, notwithstanding any notice to the contrary.
15. Notices, etc. All notices and other communications from the Company to
the holder of this Warrant shall be mailed by first class registered or
certified mail, postage prepaid, at such address as may have been furnished to
the Company in writing by such holder or, until any such holder furnishes to
the Company an address, then to, and at the address of, the last holder of this
Warrant who has so furnished an address to the Company.
16. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or
termination is sought. This Warrant shall be construed and enforced in
accordance with and governed by the laws of The Commonwealth of Massachusetts.
The headings in this Warrant are for purposes of reference only, and shall not
limit or otherwise affect any of the terms hereof. This Warrant is being
executed as an instrument under seal. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
17. Expiration; Automatic Exercise. The right to exercise this Warrant
shall expire at 5:00 P.M., Boston time, on June 30, 2006. Notwithstanding the
foregoing, this Warrant shall automatically be deemed to be exercised in full
pursuant to the provisions of Section 1.3 hereof, without any further action on
behalf of the holder hereof, immediately prior to the time this Warrant would
otherwise expire pursuant to the preceding sentence.
Dated: June 30, 1999 XXXXXX CORPORATION
/s/ Xxxx X. Xxxx
-----------------------------------------
Xxxx X. Xxxx
Vice President - Finance, Chief Financial Officer,
Treasurer and Secretary
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
TO: XxXxxx Corporation
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder__________shares
of Common Stock of XxXxxx Corporation and herewith makes payment of $__________
therefor, and requests that the certificates for such shares be issued in the
name of, and delivered to whose address is
________________________
Dated: ____________________________________________
(Signature must conform to name of holder as
specified on the face of the Warrant)
______________________________
FORM OF ASSIGNMENT
(To be signed only on transfer of warrant)
For value received, the undersigned hereby sells, assigns, and transfers
unto ...................... the right represented by the within Warrant to
purchase shares of Common Stock of XxXxxx Corporation to which the within
Warrant relates, and appoints ____________________ Attorney to transfer such
right on the books of XxXxxx Corporation with full power of substitution in the
premises.
Dated: ____________________________________________
(Signature must conform to name of holder as
specified on the face of the Warrant)
________________________________________
(Address)
Signed in the presence of:
____________________________
EXHIBIT 2.2
COMMON STOCK PURCHASE WARRANT
THIS WARRANT HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS, AND NO SALE
OR TRANSFER HEREOF MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT OR AN OPINION
OF COUNSEL FOR THE HOLDER, SATISFACTORY TO THE
COMPANY, THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
No. W-3 Right to Purchase 10,000 Shares of
Common Stock of XxXxxx Corporation
XXXXXX CORPORATION
Common Stock Purchase Warrant
XxXxxx Corporation, a Delaware corporation (the "Company"), hereby
certifies that, for value received, Adwest Limited Partnership, or registered
permitted assigns, is entitled, subject to the terms set forth below, to
purchase from the Company at any time or from time to time before 5:00 P.M.,
Boston time, on June 30, 2006 fully paid and nonassessable shares of common
stock, par value $.01 per share, of the Company ("Common Stock"), at a exercise
price per share of $20.00 (such exercise price per share as adjusted from time
to time as herein provided is referred to herein as the "Exercise Price"). The
number and character of such shares of Common Stock and the Exercise Price are
subject to adjustment as provided herein.
This Warrant is one of a series of Common Stock Purchase Warrants (the
"Warrants") evidencing the right to purchase shares of Common Stock of the
Company, issued pursuant to a certain Securities Purchase Agreement (the
"Agreement"), dated as of June 30, 1999, between the Company and the Purchasers
(as defined therein), a copy of which is on file at the principal office of the
Company. The holder of this Warrant shall be entitled to all of the benefits of
the Agreement, as provided therein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" shall include XxXxxx Corporation and any
corporation which shall succeed or assume the obligations of the Company
hereunder.
(b) The term "Common Stock" includes the Company's Common Stock, $.01 par
value per share, as authorized on the date of the Agreement and any other
securities into which or for which any of such Common Stock may be converted or
exchanged pursuant to a plan of recapitalization, reorganization, merger, sale
of assets or otherwise.
1. Exercise of Warrant.
1.1. Full Exercise. This Warrant may be exercised at any time at the
Option of the holder hereof in full by such holder by surrender of this
Warrant, with the form of subscription at the end hereof duly executed by such
holder, to the Company at its principal office, accompanied by payment, in cash
or by certified or official bank check payable to the order of the Company, in
the amount obtained by multiplying the number of shares of Common Stock for
which this Warrant is then exercisable by the Exercise Price then in effect.
1.2. Partial Exercise. This Warrant may be exercised at any time in
the sole discretion of the holder hereof in part by surrender of this Warrant
in the manner and at the place provided in Section 1.1 except that the amount
payable by the holder on such partial exercise shall be the amount obtained by
multiplying (a) the number of shares of Common Stock designated by the holder
in the subscription at the end hereof by (b) the Exercise Price then in effect.
On any such partial exercise the Company at its expense will forthwith issue
and deliver to or upon the order of the holder hereof a new Warrant or Warrants
of like tenor, in the name of the holder hereof or as such holder (upon payment
by such holder of any applicable transfer taxes) may request, calling in the
aggregate on the face or faces thereof for the number of shares of Common Stock
for which such Warrant or Warrants may still be exercised.
1.3 Net Issue Election. The holder hereof may elect to receive,
without the payment by such holder of any additional consideration, shares of
Common Stock equal to the value of this Warrant or any portion hereof by the
surrender of this Warrant or such portion to the Company, with the form of
subscription at the end hereof duly executed by such holder, at the principal
office of the Company. Thereupon, the Company shall issue to such holder such
number of fully paid and nonassessable shares of Common Stock as is computed
using the following formula:
X = Y (A-B)
A
where X = the number of shares to be issued to such holder pursuant to this
Section 1.3;
Y = the number of shares covered by this Warrant in respect of which the
net issue election is made pursuant to this Section 1.3;
A = the fair market value of one share of Common Stock, as determined in
accordance with the following provisions, as at the time the net issue election
is made pursuant to this Section 1.3; and
B = the Exercise Price in effect under this Warrant at the time the net
issue election is made pursuant to this Section 1.3.
For purposes of this Section 1.3, "fair market value" of one (1) share of
Common Stock shall be determined as follows:
(1) Where there exists a public market for the Company's Common
Stock at the time of such exercise, the fair market value per share
shall be the average of the closing bid and asked prices of the
Common Stock quoted in the Over-The-Counter Market Summary or the
last reported sale price of the Common Stock or the closing price
quoted on the NASDAQ System or on any exchange on which the Common
Stock is listed, whichever is applicable, as published in The Wall
Street Journal for the five (5) trading days prior to the date of
determination of fair market value. Notwithstanding the foregoing, in
the event the Warrants are exercised in connection with the Company's
secondary public offering of Common Stock, the fair market value per
share shall be the per share offering price to the public of the
Company's secondary public offering.
(2) If no public market for the Common Stock exists at the time
of such exercise, the Company and the holder hereof shall negotiate
in good faith in an effort to reach agreement upon the fair market
value of one share of Common Stock for a period of ten (10) days
after delivery of the executed subscription.
(3) If the Company and the holder hereof are unable to reach
agreement under the foregoing subparagraph (2), the fair market value
of one share of Common Stock shall be determined by appraisal. The
Company and the holder hereof shall each select an appraiser (the
"Selected Appraisers") within thirty (30) days after the expiration
of the ten-day period in subparagraph (2) above. Each Selected
Appraiser shall render its appraisal within thirty (30) days of its
appointment hereunder. In the event that either Selected Appraiser
fails to render an appraisal within such thirty-day period, the first
appraisal rendered shall be conclusive. In the event that the values
determined by the Selected Appraisers differ by less than ten percent
(10%) of the lower value, the fair market value shall be the average
of the appraisals made by each of the Selected Appraisers. In the
event that the values differ by ten percent (10%) or more of the
lower value, the Selected Appraisers shall within ten (10) days
select a third appraiser (the "Neutral Appraiser") to conduct an
appraisal. The Neutral Appraiser shall render its appraisal within
thirty (30) days of its appointment hereunder. The fair market value
of one share of Common Stock shall be equal to the appraisal made by
the Neutral Appraiser if such appraisal is between the two appraisals
made by the Selected Appraisers or, if such appraisal by the Neutral
Appraiser is not between the two appraisals made by the Selected
Appraisers, then the fair market value of one share of Common Stock
shall be that one of the two appraisals made by the Selected
Appraisers that is closer to the appraisal made by the Neutral
Appraiser. All appraisals delivered pursuant to this subparagraph (3)
shall be in writing and signed by the appraiser. The fees, costs and
expenses of each of the Selected Appraisers will be borne by the
party who selected such appraiser, and the fees, costs and expenses
of the Neutral Appraiser will be borne equally by the Company and the
holder hereof.
(4) In appraising the fair market value of one share of Common
Stock, there shall be no discount for minority interests.
(5) The fair market value as determined in accordance with this
Section 1.3 shall be conclusive, final and binding upon the Company
and the holder hereof, and shall be enforceable in any court having
jurisdiction over a proceeding to enforce the terms of this Warrant.
1.4. Trustee for Warrant Holders. In the event that a bank or trust
company shall have been appointed as trustee for the holders of the Warrants
pursuant to Section 4.2, such bank or trust company shall have all the powers
and duties of a warrant agent appointed pursuant to Section 12 and shall
accept, in its own name for the account of the Company or such successor person
as may be entitled thereto, all amounts otherwise payable to the Company or
such successor, as the case may be, on exercise of this Warrant pursuant to
this Section 1.
2. Delivery of Stock Certificates, etc. on Exercise. As soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within ten (10) days thereafter, the Company at its expense (including
the payment by it of any applicable issue taxes) will cause to be issued in the
name of and delivered to the holder hereof, or as such holder (upon payment by
such holder of any applicable transfer taxes and, if requested by the Company,
demonstration by such holder of compliance with applicable securities laws) may
direct, a certificate or certificates for the number of fully paid and
nonassessable shares of Common Stock to which such holder shall be entitled on
such exercise, plus, in lieu of any fractional share to which such holder would
otherwise be entitled, cash equal to such fraction multiplied by the then
current market value of one full share, together with any other stock or other
securities and property (including cash, where applicable) to which such holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustment for Dividends in Other Stock, Property, etc.;
Reclassification, etc. In case at any time or from time to time, the holders of
Common Stock shall have received, or (on or after the record date fixed for the
determination of shareholders eligible to receive) shall have become entitled
to receive, without payment therefor,
(a) other or additional stock or other securities or property (other
than cash) by way of dividend, or
(b) any cash (excluding cash dividends payable solely out of earnings
or earned surplus of the Company), or
(c) other or additional stock or other securities or property
(including cash) by way of spin-off, split-up, reclassification,
recapitalization, combination of shares or similar corporate
rearrangement,
other than additional shares of Common Stock issued as a stock dividend or in a
stock-split (adjustments in respect of which are provided for in Section 5.3),
then and in each such case the holder of this Warrant, on the exercise hereof
as provided in Section 1, shall be entitled to receive the amount of stock and
other securities and property (including cash in the cases referred to in
clauses (b) and (c) of this Section 3) which such holder would hold on the date
of such exercise if on the date hereof he had been the holder of record of the
number of shares of Common Stock called for on the face of this Warrant and had
thereafter, during the period from the date hereof to and including the date of
such exercise, retained such shares and all such other or additional stock and
other securities and property (including cash in the cases referred to in
clauses (b) and (c) of this Section 3) receivable by him as aforesaid during
such period, giving effect to all adjustments called for during such period by
Sections 4 and 5.
4. Adjustment for Reorganization, Consolidation, Merger, etc.
4.1. Reorganization. In case at any time or from time to time, the
Company shall (a) effect a reorganization, (b) consolidate with or merge into
any other person, or (c) transfer all or substantially all of its properties or
assets to any other person under any plan or arrangement contemplating the
dissolution of the Company, then, in each such case, the holder of this
Warrant, on the exercise hereof as provided in Section 1 at any time after the
consummation of such reorganization, consolidation or merger or the effective
date of such dissolution as the case may be, shall receive, in lieu of the
Common Stock issuable on such exercise prior to such consummation or such
effective date, the stock and other securities and property (including cash) to
which such holder would have been entitled upon such consummation or in
connection with such dissolution, as the case may be, if such holder had so
exercised this Warrant immediately prior thereto, all subject to further
adjustment thereafter as provided in Sections 3 and 5.
4.2. Dissolution. In the event of any dissolution of the Company
following the transfer of all or substantially all of its properties or assets,
the Company, prior to such dissolution, shall at its expense deliver or cause
to be delivered the stock and other securities and property (including cash,
where applicable) receivable by the holders of the Warrants after the effective
date of such dissolution pursuant to this Section 4 to a bank or trust company
having its principal office in Boston, Massachusetts, as trustee for the holder
or holders of the Warrants.
4.3 Continuation of Terms. Upon any reorganization, consolidation,
merger or transfer (and any dissolution following any transfer) referred to in
this Section 4, this Warrant shall continue in full force and effect and the
terms hereof shall be applicable to the shares of stock and other securities
and property receivable on the exercise of this Warrant after the consummation
of such reorganization, consolidation or merger or the effective date of
dissolution following any such transfer, as the case may be, and shall be
binding upon the issuer of any such stock or other securities, including, in
the case of any such transfer, the person acquiring all or substantially all of
the properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant as provided in Section 6.
5. Extraordinary Events. In the event that the Company shall (i) issue
additional shares of the Common Stock as a dividend or other distribution on
outstanding Common Stock, (ii) subdivide its outstanding shares of Common
Stock, or (iii) combine its outstanding shares of the Common Stock into a
smaller number of shares of the Common Stock, then, in each such event, the
Exercise Price shall, simultaneously with the happening of such event, be
adjusted by multiplying the then Exercise Price by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding immediately
prior to such event and the denominator of which shall be the number of shares
of Common Stock outstanding immediately after such event, and the product so
obtained shall thereafter be the Exercise Price then in effect. The Exercise
Price, as so adjusted, shall be readjusted in the same manner upon the
happening of any successive event or events described herein in this Section 5.
The holder of this Warrant shall thereafter, on the exercise hereof as provided
in Section 1, be entitled to receive that number of shares of Common Stock
determined by multiplying the number of shares of Common Stock which would
otherwise (but for the provisions of this Section 5) be issuable on such
exercise by a fraction of which (i) the numerator is the Exercise Price which
would otherwise (but for the provisions of this Section 5) be in effect, and
(ii) the denominator is the Exercise Price in effect on the date of such
exercise.
6. No Dilution or Impairment. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms of the Warrants, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the holders of the
Warrants against dilution or other impairment. Without limiting the generality
of the foregoing, the Company (a) will not increase the par value of any shares
of stock receivable on the exercise of the Warrants above the amount payable
therefor on such exercise, (b) will take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of stock on the exercise of all Warrants from time to
time outstanding, and (c) will not transfer all or substantially all of its
properties and assets to any other person (corporate or otherwise), or
consolidate with or merge into any other person or permit any such person to
consolidate with or merge into the Company (if the Company is not the surviving
person), unless such other person shall expressly assume in writing and will be
bound by all the terms of the Warrants.
7. Accountants' Certificate as to Adjustments. In each case of any
adjustment or readjustment in the shares of Common Stock issuable on the
exercise of the Warrants, the Company at its expense will promptly cause its
Chief Financial Officer or, if the holder of a Warrant so requests, independent
certified public accountants of recognized standing selected by the Company to
compute such adjustment or readjustment in accordance with the terms of the
Warrants and prepare a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based, including a statement of (a) the consideration received
or receivable by the Company for any additional shares of Common Stock issued
or sold or deemed to have been issued or sold, (b) the number of shares of
Common Stock outstanding or deemed to be outstanding, and (c) the Exercise
Price and the number of shares of Common Stock to be received upon exercise of
this Warrant, in effect immediately prior to such issue or sale and as adjusted
and readjusted as provided in this Warrant. The Company will forthwith mail a
copy of each such certificate to each holder of a Warrant, and will, on the
written request at any time of any holder of a Warrant, furnish to such holder
a like certificate setting forth the Exercise Price at the time in effect and
showing how it was calculated.
8. Notices of Record Date, etc. In the event of
(a) any taking by the Company of a record of the holders of any class
or securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities or property, or to receive any other right,
or
(b) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company or any transfer of
all or substantially all the assets of the Company to or consolidation or
merger of the Company with or into any other person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company, or
(d) any proposed issue or grant by the Company of any shares of stock
of any class or any other securities, or any right or option to subscribe
for, purchase or otherwise acquire any shares of stock of any class or any
other securities (other than the issue of Common Stock on the exercise of
the Warrants),
then and in each such event the Company will mail or cause to be mailed to each
registered holder of a Warrant a notice specifying (i) the date on which any
such record is to be taken for the purpose of such dividend, distribution or
right, and stating the amount and character of such dividend, distribution or
right, (ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock shall be entitled to exchange their
shares of Common Stock for securities or other property deliverable on such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up, and (iii) the amount and
character of any stock or other securities, or rights or options with respect
thereto, proposed to be issued or granted, the date of such proposed issue or
grant and the persons or class of persons to whom such proposed issue or grant
is to be offered or made. Such notice shall be mailed at least 20 days prior to
the date specified in such notice on which any such action is to be taken.
9. Reservation of Stock, etc., Issuable on Exercise of Warrants. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of the Warrants, all shares of Common Stock from time
to time issuable on the exercise of the Warrants.
10. Exchange of Warrants. On surrender for exchange of any Warrant,
properly endorsed, to the Company, the Company at its expense will issue and
deliver to or on the order of the holder thereof a new Warrant or warrants of
like tenor, in the name of such holder or as such holder (upon payment by such
holder of any applicable transfer taxes and, if requested by the Company,
demonstration by such holder of compliance with applicable securities laws) may
direct, calling in the aggregate on the face or faces thereof for the number of
shares of Common Stock called for on the face or faces of the Warrant or
Warrants so surrendered.
11. Replacement of Warrants. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
any Warrant and, in the case of any such loss, theft or destruction of any
Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such warrant, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
12. Warrant Agent. The Company may, by written notice to each holder of a
Warrant, appoint an agent having an office in either Boston, Massachusetts or
New York, New York for the purpose of issuing Common Stock on the exercise of
the Warrants pursuant to Section 1, exchanging Warrants pursuant to Section 10,
and replacing Warrants pursuant to Section 11, or any of the foregoing, and
thereafter any such issuance, exchange or replacement, as the case may be,
shall be made at such office by such agent.
13. Remedies. The Company stipulates that the remedies at law of the
holder of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
14. Negotiability, etc. This Warrant is issued upon the following terms,
to all of which each holder or owner hereof by the taking hereof consents and
agrees:
(a) subject to compliance with all applicable securities laws, title
to this Warrant may be transferred by endorsement (by the holder hereof
executing the form of assignment at the end hereof) and delivery in the
same manner as in the case of a negotiable instrument transferable by
endorsement and delivery;
(b) any person in possession of this Warrant properly endorsed is
authorized to represent himself as absolute owner hereof and is empowered
to transfer absolute title hereto by endorsement and delivery hereof to a
bona fide purchaser hereof for value; each prior taker or owner waives and
renounces all of his equities or rights in this Warrant in favor of each
such bona fide purchaser, and each such bona fide purchaser shall acquire
absolute title hereto and to all rights represented hereby; and
(c) until this Warrant is transferred on the books of the Company,
the Company may treat the registered holder hereof as the absolute owner
hereof for all purposes, notwithstanding any notice to the contrary.
15. Notices, etc. All notices and other communications from the Company to
the holder of this Warrant shall be mailed by first class registered or
certified mail, postage prepaid, at such address as may have been furnished to
the Company in writing by such holder or, until any such holder furnishes to
the Company an address, then to, and at the address of, the last holder of this
Warrant who has so furnished an address to the Company.
16. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or
termination is sought. This Warrant shall be construed and enforced in
accordance with and governed by the laws of The Commonwealth of Massachusetts.
The headings in this Warrant are for purposes of reference only, and shall not
limit or otherwise affect any of the terms hereof. This Warrant is being
executed as an instrument under seal. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
17. Expiration; Automatic Exercise. The right to exercise this Warrant
shall expire at 5:00 P.M., Boston time, on June 30, 2006. Notwithstanding the
foregoing, this Warrant shall automatically be deemed to be exercised in full
pursuant to the provisions of Section 1.3 hereof, without any further action on
behalf of the holder hereof, immediately prior to the time this Warrant would
otherwise expire pursuant to the preceding sentence.
Dated: June 30, 1999 XXXXXX CORPORATION
/s/ Xxxx X. Xxxx
---------------------------------------
Xxxx X. Xxxx
Vice President - Finance, Chief Financial Officer,
Treasurer and Secretary
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
TO: XxXxxx Corporation
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder__________shares
of Common Stock of XxXxxx Corporation and herewith makes payment of $__________
therefor, and requests that the certificates for such shares be issued in the
name of, and delivered to whose address is
______________________________
Dated: _________________________________________
(Signature must conform to name of holder as
specified on the face of the Warrant)
______________________________
FORM OF ASSIGNMENT
(To be signed only on transfer of warrant)
For value received, the undersigned hereby sells, assigns, and transfers
unto ...................... the right represented by the within Warrant to
purchase shares of Common Stock of XxXxxx Corporation to which the within
Warrant relates, and appoints ____________________ Attorney to transfer such
right on the books of XxXxxx Corporation with full power of substitution in the
premises.
Dated: ________________________________________
(Signature must conform to name of holder as
specified on the face of the Warrant)
_________________________________________
(Address)
Signed in the presence of:
______________________________
EXHIBIT 2.2
COMMON STOCK PURCHASE WARRANT
THIS WARRANT HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS, AND NO SALE
OR TRANSFER HEREOF MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT OR AN OPINION
OF COUNSEL FOR THE HOLDER, SATISFACTORY TO THE
COMPANY, THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
No. W-4 Right to Purchase 25,000 Shares of
Common Stock of XxXxxx Corporation
XXXXXX CORPORATION
Common Stock Purchase Warrant
XxXxxx Corporation, a Delaware corporation (the "Company"), hereby
certifies that, for value received, Oakstone Ventures Limited Partnership, or
registered permitted assigns, is entitled, subject to the terms set forth
below, to purchase from the Company at any time or from time to time before
5:00 P.M., Boston time, on June 30, 2006 fully paid and nonassessable shares of
common stock, par value $.01 per share, of the Company ("Common Stock"), at a
exercise price per share of $20.00 (such exercise price per share as adjusted
from time to time as herein provided is referred to herein as the "Exercise
Price"). The number and character of such shares of Common Stock and the
Exercise Price are subject to adjustment as provided herein.
This Warrant is one of a series of Common Stock Purchase Warrants (the
"Warrants") evidencing the right to purchase shares of Common Stock of the
Company, issued pursuant to a certain Securities Purchase Agreement (the
"Agreement"), dated as of June 30, 1999, between the Company and the Purchasers
(as defined therein), a copy of which is on file at the principal office of the
Company. The holder of this Warrant shall be entitled to all of the benefits of
the Agreement, as provided therein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" shall include XxXxxx Corporation and any
corporation which shall succeed or assume the obligations of the Company
hereunder.
(b) The term "Common Stock" includes the Company's Common Stock, $.01 par
value per share, as authorized on the date of the Agreement and any other
securities into which or for which any of such Common Stock may be converted or
exchanged pursuant to a plan of recapitalization, reorganization, merger, sale
of assets or otherwise.
1. Exercise of Warrant.
1.1. Full Exercise. This Warrant may be exercised at any time at the
Option of the holder hereof in full by such holder by surrender of this
Warrant, with the form of subscription at the end hereof duly executed by such
holder, to the Company at its principal office, accompanied by payment, in cash
or by certified or official bank check payable to the order of the Company, in
the amount obtained by multiplying the number of shares of Common Stock for
which this Warrant is then exercisable by the Exercise Price then in effect.
1.2. Partial Exercise. This Warrant may be exercised at any time in
the sole discretion of the holder hereof in part by surrender of this Warrant
in the manner and at the place provided in Section 1.1 except that the amount
payable by the holder on such partial exercise shall be the amount obtained by
multiplying (a) the number of shares of Common Stock designated by the holder
in the subscription at the end hereof by (b) the Exercise Price then in effect.
On any such partial exercise the Company at its expense will forthwith issue
and deliver to or upon the order of the holder hereof a new Warrant or Warrants
of like tenor, in the name of the holder hereof or as such holder (upon payment
by such holder of any applicable transfer taxes) may request, calling in the
aggregate on the face or faces thereof for the number of shares of Common Stock
for which such Warrant or Warrants may still be exercised.
1.3 Net Issue Election. The holder hereof may elect to receive,
without the payment by such holder of any additional consideration, shares of
Common Stock equal to the value of this Warrant or any portion hereof by the
surrender of this Warrant or such portion to the Company, with the form of
subscription at the end hereof duly executed by such holder, at the principal
office of the Company. Thereupon, the Company shall issue to such holder such
number of fully paid and nonassessable shares of Common Stock as is computed
using the following formula:
X = Y (A-B)
A
where X = the number of shares to be issued to such holder pursuant to this
Section 1.3;
Y = the number of shares covered by this Warrant in respect of which the
net issue election is made pursuant to this Section 1.3;
A = the fair market value of one share of Common Stock, as determined in
accordance with the following provisions, as at the time the net issue election
is made pursuant to this Section 1.3; and
B = the Exercise Price in effect under this Warrant at the time the net
issue election is made pursuant to this Section 1.3.
For purposes of this Section 1.3, "fair market value" of one (1) share of
Common Stock shall be determined as follows:
(1) Where there exists a public market for the Company's Common
Stock at the time of such exercise, the fair market value per share
shall be the average of the closing bid and asked prices of the
Common Stock quoted in the Over-The-Counter Market Summary or the
last reported sale price of the Common Stock or the closing price
quoted on the NASDAQ System or on any exchange on which the Common
Stock is listed, whichever is applicable, as published in The Wall
Street Journal for the five (5) trading days prior to the date of
determination of fair market value. Notwithstanding the foregoing, in
the event the Warrants are exercised in connection with the Company's
secondary public offering of Common Stock, the fair market value per
share shall be the per share offering price to the public of the
Company's secondary public offering.
(2) If no public market for the Common Stock exists at the time
of such exercise, the Company and the holder hereof shall negotiate
in good faith in an effort to reach agreement upon the fair market
value of one share of Common Stock for a period of ten (10) days
after delivery of the executed subscription.
(3) If the Company and the holder hereof are unable to reach
agreement under the foregoing subparagraph (2), the fair market value
of one share of Common Stock shall be determined by appraisal. The
Company and the holder hereof shall each select an appraiser (the
"Selected Appraisers") within thirty (30) days after the expiration
of the ten-day period in subparagraph (2) above. Each Selected
Appraiser shall render its appraisal within thirty (30) days of its
appointment hereunder. In the event that either Selected Appraiser
fails to render an appraisal within such thirty-day period, the first
appraisal rendered shall be conclusive. In the event that the values
determined by the Selected Appraisers differ by less than ten percent
(10%) of the lower value, the fair market value shall be the average
of the appraisals made by each of the Selected Appraisers. In the
event that the values differ by ten percent (10%) or more of the
lower value, the Selected Appraisers shall within ten (10) days
select a third appraiser (the "Neutral Appraiser") to conduct an
appraisal. The Neutral Appraiser shall render its appraisal within
thirty (30) days of its appointment hereunder. The fair market value
of one share of Common Stock shall be equal to the appraisal made by
the Neutral Appraiser if such appraisal is between the two appraisals
made by the Selected Appraisers or, if such appraisal by the Neutral
Appraiser is not between the two appraisals made by the Selected
Appraisers, then the fair market value of one share of Common Stock
shall be that one of the two appraisals made by the Selected
Appraisers that is closer to the appraisal made by the Neutral
Appraiser. All appraisals delivered pursuant to this subparagraph (3)
shall be in writing and signed by the appraiser. The fees, costs and
expenses of each of the Selected Appraisers will be borne by the
party who selected such appraiser, and the fees, costs and expenses
of the Neutral Appraiser will be borne equally by the Company and the
holder hereof.
(4) In appraising the fair market value of one share of Common
Stock, there shall be no discount for minority interests.
(5) The fair market value as determined in accordance with this
Section 1.3 shall be conclusive, final and binding upon the Company
and the holder hereof, and shall be enforceable in any court having
jurisdiction over a proceeding to enforce the terms of this Warrant.
1.4. Trustee for Warrant Holders. In the event that a bank or trust
company shall have been appointed as trustee for the holders of the Warrants
pursuant to Section 4.2, such bank or trust company shall have all the powers
and duties of a warrant agent appointed pursuant to Section 12 and shall
accept, in its own name for the account of the Company or such successor person
as may be entitled thereto, all amounts otherwise payable to the Company or
such successor, as the case may be, on exercise of this Warrant pursuant to
this Section 1.
2. Delivery of Stock Certificates, etc. on Exercise. As soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within ten (10) days thereafter, the Company at its expense (including
the payment by it of any applicable issue taxes) will cause to be issued in the
name of and delivered to the holder hereof, or as such holder (upon payment by
such holder of any applicable transfer taxes and, if requested by the Company,
demonstration by such holder of compliance with applicable securities laws) may
direct, a certificate or certificates for the number of fully paid and
nonassessable shares of Common Stock to which such holder shall be entitled on
such exercise, plus, in lieu of any fractional share to which such holder would
otherwise be entitled, cash equal to such fraction multiplied by the then
current market value of one full share, together with any other stock or other
securities and property (including cash, where applicable) to which such holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustment for Dividends in Other Stock, Property, etc.;
Reclassification, etc. In case at any time or from time to time, the holders of
Common Stock shall have received, or (on or after the record date fixed for the
determination of shareholders eligible to receive) shall have become entitled
to receive, without payment therefor,
(a) other or additional stock or other securities or property (other
than cash) by way of dividend, or
(b) any cash (excluding cash dividends payable solely out of earnings
or earned surplus of the Company), or
(c) other or additional stock or other securities or property
(including cash) by way of spin-off, split-up, reclassification,
recapitalization, combination of shares or similar corporate
rearrangement,
other than additional shares of Common Stock issued as a stock dividend or in a
stock-split (adjustments in respect of which are provided for in Section 5.3),
then and in each such case the holder of this Warrant, on the exercise hereof
as provided in Section 1, shall be entitled to receive the amount of stock and
other securities and property (including cash in the cases referred to in
clauses (b) and (c) of this Section 3) which such holder would hold on the date
of such exercise if on the date hereof he had been the holder of record of the
number of shares of Common Stock called for on the face of this Warrant and had
thereafter, during the period from the date hereof to and including the date of
such exercise, retained such shares and all such other or additional stock and
other securities and property (including cash in the cases referred to in
clauses (b) and (c) of this Section 3) receivable by him as aforesaid during
such period, giving effect to all adjustments called for during such period by
Sections 4 and 5.
4. Adjustment for Reorganization, Consolidation, Merger, etc.
4.1. Reorganization. In case at any time or from time to time, the
Company shall (a) effect a reorganization, (b) consolidate with or merge into
any other person, or (c) transfer all or substantially all of its properties or
assets to any other person under any plan or arrangement contemplating the
dissolution of the Company, then, in each such case, the holder of this
Warrant, on the exercise hereof as provided in Section 1 at any time after the
consummation of such reorganization, consolidation or merger or the effective
date of such dissolution as the case may be, shall receive, in lieu of the
Common Stock issuable on such exercise prior to such consummation or such
effective date, the stock and other securities and property (including cash) to
which such holder would have been entitled upon such consummation or in
connection with such dissolution, as the case may be, if such holder had so
exercised this Warrant immediately prior thereto, all subject to further
adjustment thereafter as provided in Sections 3 and 5.
4.2. Dissolution. In the event of any dissolution of the Company
following the transfer of all or substantially all of its properties or assets,
the Company, prior to such dissolution, shall at its expense deliver or cause
to be delivered the stock and other securities and property (including cash,
where applicable) receivable by the holders of the Warrants after the effective
date of such dissolution pursuant to this Section 4 to a bank or trust company
having its principal office in Boston, Massachusetts, as trustee for the holder
or holders of the Warrants.
4.3 Continuation of Terms. Upon any reorganization, consolidation,
merger or transfer (and any dissolution following any transfer) referred to in
this Section 4, this Warrant shall continue in full force and effect and the
terms hereof shall be applicable to the shares of stock and other securities
and property receivable on the exercise of this Warrant after the consummation
of such reorganization, consolidation or merger or the effective date of
dissolution following any such transfer, as the case may be, and shall be
binding upon the issuer of any such stock or other securities, including, in
the case of any such transfer, the person acquiring all or substantially all of
the properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant as provided in Section 6.
5. Extraordinary Events. In the event that the Company shall (i) issue
additional shares of the Common Stock as a dividend or other distribution on
outstanding Common Stock, (ii) subdivide its outstanding shares of Common
Stock, or (iii) combine its outstanding shares of the Common Stock into a
smaller number of shares of the Common Stock, then, in each such event, the
Exercise Price shall, simultaneously with the happening of such event, be
adjusted by multiplying the then Exercise Price by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding immediately
prior to such event and the denominator of which shall be the number of shares
of Common Stock outstanding immediately after such event, and the product so
obtained shall thereafter be the Exercise Price then in effect. The Exercise
Price, as so adjusted, shall be readjusted in the same manner upon the
happening of any successive event or events described herein in this Section 5.
The holder of this Warrant shall thereafter, on the exercise hereof as provided
in Section 1, be entitled to receive that number of shares of Common Stock
determined by multiplying the number of shares of Common Stock which would
otherwise (but for the provisions of this Section 5) be issuable on such
exercise by a fraction of which (i) the numerator is the Exercise Price which
would otherwise (but for the provisions of this Section 5) be in effect, and
(ii) the denominator is the Exercise Price in effect on the date of such
exercise.
6. No Dilution or Impairment. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms of the Warrants, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the holders of the
Warrants against dilution or other impairment. Without limiting the generality
of the foregoing, the Company (a) will not increase the par value of any shares
of stock receivable on the exercise of the Warrants above the amount payable
therefor on such exercise, (b) will take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of stock on the exercise of all Warrants from time to
time outstanding, and (c) will not transfer all or substantially all of its
properties and assets to any other person (corporate or otherwise), or
consolidate with or merge into any other person or permit any such person to
consolidate with or merge into the Company (if the Company is not the surviving
person), unless such other person shall expressly assume in writing and will be
bound by all the terms of the Warrants.
7. Accountants' Certificate as to Adjustments. In each case of any
adjustment or readjustment in the shares of Common Stock issuable on the
exercise of the Warrants, the Company at its expense will promptly cause its
Chief Financial Officer or, if the holder of a Warrant so requests, independent
certified public accountants of recognized standing selected by the Company to
compute such adjustment or readjustment in accordance with the terms of the
Warrants and prepare a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based, including a statement of (a) the consideration received
or receivable by the Company for any additional shares of Common Stock issued
or sold or deemed to have been issued or sold, (b) the number of shares of
Common Stock outstanding or deemed to be outstanding, and (c) the Exercise
Price and the number of shares of Common Stock to be received upon exercise of
this Warrant, in effect immediately prior to such issue or sale and as adjusted
and readjusted as provided in this Warrant. The Company will forthwith mail a
copy of each such certificate to each holder of a Warrant, and will, on the
written request at any time of any holder of a Warrant, furnish to such holder
a like certificate setting forth the Exercise Price at the time in effect and
showing how it was calculated.
8. Notices of Record Date, etc. In the event of
(a) any taking by the Company of a record of the holders of any class
or securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities or property, or to receive any other right,
or
(b) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company or any transfer of
all or substantially all the assets of the Company to or consolidation or
merger of the Company with or into any other person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company, or
(d) any proposed issue or grant by the Company of any shares of stock
of any class or any other securities, or any right or option to subscribe
for, purchase or otherwise acquire any shares of stock of any class or any
other securities (other than the issue of Common Stock on the exercise of
the Warrants),
then and in each such event the Company will mail or cause to be mailed to each
registered holder of a Warrant a notice specifying (i) the date on which any
such record is to be taken for the purpose of such dividend, distribution or
right, and stating the amount and character of such dividend, distribution or
right, (ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock shall be entitled to exchange their
shares of Common Stock for securities or other property deliverable on such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up, and (iii) the amount and
character of any stock or other securities, or rights or options with respect
thereto, proposed to be issued or granted, the date of such proposed issue or
grant and the persons or class of persons to whom such proposed issue or grant
is to be offered or made. Such notice shall be mailed at least 20 days prior to
the date specified in such notice on which any such action is to be taken.
9. Reservation of Stock, etc., Issuable on Exercise of Warrants. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of the Warrants, all shares of Common Stock from time
to time issuable on the exercise of the Warrants.
10. Exchange of Warrants. On surrender for exchange of any Warrant,
properly endorsed, to the Company, the Company at its expense will issue and
deliver to or on the order of the holder thereof a new Warrant or warrants of
like tenor, in the name of such holder or as such holder (upon payment by such
holder of any applicable transfer taxes and, if requested by the Company,
demonstration by such holder of compliance with applicable securities laws) may
direct, calling in the aggregate on the face or faces thereof for the number of
shares of Common Stock called for on the face or faces of the Warrant or
Warrants so surrendered.
11. Replacement of Warrants. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
any Warrant and, in the case of any such loss, theft or destruction of any
Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such warrant, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
12. Warrant Agent. The Company may, by written notice to each holder of a
Warrant, appoint an agent having an office in either Boston, Massachusetts or
New York, New York for the purpose of issuing Common Stock on the exercise of
the Warrants pursuant to Section 1, exchanging Warrants pursuant to Section 10,
and replacing Warrants pursuant to Section 11, or any of the foregoing, and
thereafter any such issuance, exchange or replacement, as the case may be,
shall be made at such office by such agent.
13. Remedies. The Company stipulates that the remedies at law of the
holder of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
14. Negotiability, etc. This Warrant is issued upon the following terms,
to all of which each holder or owner hereof by the taking hereof consents and
agrees:
(a) subject to compliance with all applicable securities laws, title
to this Warrant may be transferred by endorsement (by the holder hereof
executing the form of assignment at the end hereof) and delivery in the
same manner as in the case of a negotiable instrument transferable by
endorsement and delivery;
(b) any person in possession of this Warrant properly endorsed is
authorized to represent himself as absolute owner hereof and is empowered
to transfer absolute title hereto by endorsement and delivery hereof to a
bona fide purchaser hereof for value; each prior taker or owner waives and
renounces all of his equities or rights in this Warrant in favor of each
such bona fide purchaser, and each such bona fide purchaser shall acquire
absolute title hereto and to all rights represented hereby; and
(c) until this Warrant is transferred on the books of the Company,
the Company may treat the registered holder hereof as the absolute owner
hereof for all purposes, notwithstanding any notice to the contrary.
15. Notices, etc. All notices and other communications from the Company to
the holder of this Warrant shall be mailed by first class registered or
certified mail, postage prepaid, at such address as may have been furnished to
the Company in writing by such holder or, until any such holder furnishes to
the Company an address, then to, and at the address of, the last holder of this
Warrant who has so furnished an address to the Company.
16. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or
termination is sought. This Warrant shall be construed and enforced in
accordance with and governed by the laws of The Commonwealth of Massachusetts.
The headings in this Warrant are for purposes of reference only, and shall not
limit or otherwise affect any of the terms hereof. This Warrant is being
executed as an instrument under seal. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
17. Expiration; Automatic Exercise. The right to exercise this Warrant
shall expire at 5:00 P.M., Boston time, on June 30, 2006. Notwithstanding the
foregoing, this Warrant shall automatically be deemed to be exercised in full
pursuant to the provisions of Section 1.3 hereof, without any further action on
behalf of the holder hereof, immediately prior to the time this Warrant would
otherwise expire pursuant to the preceding sentence.
Dated: June 30, 1999 XXXXXX CORPORATION
/s/ Xxxx X. Xxxx
--------------------------------------
Xxxx X. Xxxx
Vice President - Finance, Chief Financial Officer,
Treasurer and Secretary
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
TO: XxXxxx Corporation
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder__________shares
of Common Stock of XxXxxx Corporation and herewith makes payment of $__________
therefor, and requests that the certificates for such shares be issued in the
name of, and delivered to whose address is
______________________________
Dated: _________________________________________
(Signature must conform to name of holder as
specified on the face of the Warrant)
____________________________
FORM OF ASSIGNMENT
(To be signed only on transfer of warrant)
For value received, the undersigned hereby sells, assigns, and transfers
unto ...................... the right represented by the within Warrant to
purchase shares of Common Stock of XxXxxx Corporation to which the within
Warrant relates, and appoints ____________________ Attorney to transfer such
right on the books of XxXxxx Corporation with full power of substitution in the
premises.
Dated: _________________________________________
(Signature must conform to name of holder as
specified on the face of the Warrant)
________________________________________
(Address)
Signed in the presence of:
______________________________
EXHIBIT 2.2
COMMON STOCK PURCHASE WARRANT
THIS WARRANT HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS, AND NO SALE
OR TRANSFER HEREOF MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT OR AN OPINION
OF COUNSEL FOR THE HOLDER, SATISFACTORY TO THE
COMPANY, THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
No. W-5 Right to Purchase 4,375 Shares of
Common Stock of XxXxxx Corporation
XXXXXX CORPORATION
Common Stock Purchase Warrant
XxXxxx Corporation, a Delaware corporation (the "Company"), hereby
certifies that, for value received, Advent Partners Limited Partnership, or
registered permitted assigns, is entitled, subject to the terms set forth
below, to purchase from the Company at any time or from time to time before
5:00 P.M., Boston time, on June 30, 2006 fully paid and nonassessable shares of
common stock, par value $.01 per share, of the Company ("Common Stock"), at a
exercise price per share of $20.00 (such exercise price per share as adjusted
from time to time as herein provided is referred to herein as the "Exercise
Price"). The number and character of such shares of Common Stock and the
Exercise Price are subject to adjustment as provided herein.
This Warrant is one of a series of Common Stock Purchase Warrants (the
"Warrants") evidencing the right to purchase shares of Common Stock of the
Company, issued pursuant to a certain Securities Purchase Agreement (the
"Agreement"), dated as of June 30, 1999, between the Company and the Purchasers
(as defined therein), a copy of which is on file at the principal office of the
Company. The holder of this Warrant shall be entitled to all of the benefits of
the Agreement, as provided therein.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" shall include XxXxxx Corporation and any
corporation which shall succeed or assume the obligations of the Company
hereunder.
(b) The term "Common Stock" includes the Company's Common Stock, $.01 par
value per share, as authorized on the date of the Agreement and any other
securities into which or for which any of such Common Stock may be converted or
exchanged pursuant to a plan of recapitalization, reorganization, merger, sale
of assets or otherwise.
1. Exercise of Warrant.
1.1. Full Exercise. This Warrant may be exercised at any time at the
Option of the holder hereof in full by such holder by surrender of this
Warrant, with the form of subscription at the end hereof duly executed by such
holder, to the Company at its principal office, accompanied by payment, in cash
or by certified or official bank check payable to the order of the Company, in
the amount obtained by multiplying the number of shares of Common Stock for
which this Warrant is then exercisable by the Exercise Price then in effect.
1.2. Partial Exercise. This Warrant may be exercised at any time in
the sole discretion of the holder hereof in part by surrender of this Warrant
in the manner and at the place provided in Section 1.1 except that the amount
payable by the holder on such partial exercise shall be the amount obtained by
multiplying (a) the number of shares of Common Stock designated by the holder
in the subscription at the end hereof by (b) the Exercise Price then in effect.
On any such partial exercise the Company at its expense will forthwith issue
and deliver to or upon the order of the holder hereof a new Warrant or Warrants
of like tenor, in the name of the holder hereof or as such holder (upon payment
by such holder of any applicable transfer taxes) may request, calling in the
aggregate on the face or faces thereof for the number of shares of Common Stock
for which such Warrant or Warrants may still be exercised.
1.3 Net Issue Election. The holder hereof may elect to receive,
without the payment by such holder of any additional consideration, shares of
Common Stock equal to the value of this Warrant or any portion hereof by the
surrender of this Warrant or such portion to the Company, with the form of
subscription at the end hereof duly executed by such holder, at the principal
office of the Company. Thereupon, the Company shall issue to such holder such
number of fully paid and nonassessable shares of Common Stock as is computed
using the following formula:
X = Y (A-B)
A
where X = the number of shares to be issued to such holder pursuant to this
Section 1.3;
Y = the number of shares covered by this Warrant in respect of which the
net issue election is made pursuant to this Section 1.3;
A = the fair market value of one share of Common Stock, as determined in
accordance with the following provisions, as at the time the net issue election
is made pursuant to this Section 1.3; and
B = the Exercise Price in effect under this Warrant at the time the net
issue election is made pursuant to this Section 1.3.
For purposes of this Section 1.3, "fair market value" of one (1) share of
Common Stock shall be determined as follows:
(1) Where there exists a public market for the Company's Common
Stock at the time of such exercise, the fair market value per share
shall be the average of the closing bid and asked prices of the
Common Stock quoted in the Over-The-Counter Market Summary or the
last reported sale price of the Common Stock or the closing price
quoted on the NASDAQ System or on any exchange on which the Common
Stock is listed, whichever is applicable, as published in The Wall
Street Journal for the five (5) trading days prior to the date of
determination of fair market value. Notwithstanding the foregoing, in
the event the Warrants are exercised in connection with the Company's
secondary public offering of Common Stock, the fair market value per
share shall be the per share offering price to the public of the
Company's secondary public offering.
(2) If no public market for the Common Stock exists at the time
of such exercise, the Company and the holder hereof shall negotiate
in good faith in an effort to reach agreement upon the fair market
value of one share of Common Stock for a period of ten (10) days
after delivery of the executed subscription.
(3) If the Company and the holder hereof are unable to reach
agreement under the foregoing subparagraph (2), the fair market value
of one share of Common Stock shall be determined by appraisal. The
Company and the holder hereof shall each select an appraiser (the
"Selected Appraisers") within thirty (30) days after the expiration
of the ten-day period in subparagraph (2) above. Each Selected
Appraiser shall render its appraisal within thirty (30) days of its
appointment hereunder. In the event that either Selected Appraiser
fails to render an appraisal within such thirty-day period, the first
appraisal rendered shall be conclusive. In the event that the values
determined by the Selected Appraisers differ by less than ten percent
(10%) of the lower value, the fair market value shall be the average
of the appraisals made by each of the Selected Appraisers. In the
event that the values differ by ten percent (10%) or more of the
lower value, the Selected Appraisers shall within ten (10) days
select a third appraiser (the "Neutral Appraiser") to conduct an
appraisal. The Neutral Appraiser shall render its appraisal within
thirty (30) days of its appointment hereunder. The fair market value
of one share of Common Stock shall be equal to the appraisal made by
the Neutral Appraiser if such appraisal is between the two appraisals
made by the Selected Appraisers or, if such appraisal by the Neutral
Appraiser is not between the two appraisals made by the Selected
Appraisers, then the fair market value of one share of Common Stock
shall be that one of the two appraisals made by the Selected
Appraisers that is closer to the appraisal made by the Neutral
Appraiser. All appraisals delivered pursuant to this subparagraph (3)
shall be in writing and signed by the appraiser. The fees, costs and
expenses of each of the Selected Appraisers will be borne by the
party who selected such appraiser, and the fees, costs and expenses
of the Neutral Appraiser will be borne equally by the Company and the
holder hereof.
(4) In appraising the fair market value of one share of Common
Stock, there shall be no discount for minority interests.
(5) The fair market value as determined in accordance with this
Section 1.3 shall be conclusive, final and binding upon the Company
and the holder hereof, and shall be enforceable in any court having
jurisdiction over a proceeding to enforce the terms of this Warrant.
1.4. Trustee for Warrant Holders. In the event that a bank or trust
company shall have been appointed as trustee for the holders of the Warrants
pursuant to Section 4.2, such bank or trust company shall have all the powers
and duties of a warrant agent appointed pursuant to Section 12 and shall
accept, in its own name for the account of the Company or such successor person
as may be entitled thereto, all amounts otherwise payable to the Company or
such successor, as the case may be, on exercise of this Warrant pursuant to
this Section 1.
2. Delivery of Stock Certificates, etc. on Exercise. As soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within ten (10) days thereafter, the Company at its expense (including
the payment by it of any applicable issue taxes) will cause to be issued in the
name of and delivered to the holder hereof, or as such holder (upon payment by
such holder of any applicable transfer taxes and, if requested by the Company,
demonstration by such holder of compliance with applicable securities laws) may
direct, a certificate or certificates for the number of fully paid and
nonassessable shares of Common Stock to which such holder shall be entitled on
such exercise, plus, in lieu of any fractional share to which such holder would
otherwise be entitled, cash equal to such fraction multiplied by the then
current market value of one full share, together with any other stock or other
securities and property (including cash, where applicable) to which such holder
is entitled upon such exercise pursuant to Section 1 or otherwise.
3. Adjustment for Dividends in Other Stock, Property, etc.;
Reclassification, etc. In case at any time or from time to time, the holders of
Common Stock shall have received, or (on or after the record date fixed for the
determination of shareholders eligible to receive) shall have become entitled
to receive, without payment therefor,
(a) other or additional stock or other securities or property (other
than cash) by way of dividend, or
(b) any cash (excluding cash dividends payable solely out of earnings
or earned surplus of the Company), or
(c) other or additional stock or other securities or property
(including cash) by way of spin-off, split-up, reclassification,
recapitalization, combination of shares or similar corporate
rearrangement,
other than additional shares of Common Stock issued as a stock dividend or in a
stock-split (adjustments in respect of which are provided for in Section 5.3),
then and in each such case the holder of this Warrant, on the exercise hereof
as provided in Section 1, shall be entitled to receive the amount of stock and
other securities and property (including cash in the cases referred to in
clauses (b) and (c) of this Section 3) which such holder would hold on the date
of such exercise if on the date hereof he had been the holder of record of the
number of shares of Common Stock called for on the face of this Warrant and had
thereafter, during the period from the date hereof to and including the date of
such exercise, retained such shares and all such other or additional stock and
other securities and property (including cash in the cases referred to in
clauses (b) and (c) of this Section 3) receivable by him as aforesaid during
such period, giving effect to all adjustments called for during such period by
Sections 4 and 5.
4. Adjustment for Reorganization, Consolidation, Merger, etc.
4.1. Reorganization. In case at any time or from time to time, the
Company shall (a) effect a reorganization, (b) consolidate with or merge into
any other person, or (c) transfer all or substantially all of its properties or
assets to any other person under any plan or arrangement contemplating the
dissolution of the Company, then, in each such case, the holder of this
Warrant, on the exercise hereof as provided in Section 1 at any time after the
consummation of such reorganization, consolidation or merger or the effective
date of such dissolution as the case may be, shall receive, in lieu of the
Common Stock issuable on such exercise prior to such consummation or such
effective date, the stock and other securities and property (including cash) to
which such holder would have been entitled upon such consummation or in
connection with such dissolution, as the case may be, if such holder had so
exercised this Warrant immediately prior thereto, all subject to further
adjustment thereafter as provided in Sections 3 and 5.
4.2. Dissolution. In the event of any dissolution of the Company
following the transfer of all or substantially all of its properties or assets,
the Company, prior to such dissolution, shall at its expense deliver or cause
to be delivered the stock and other securities and property (including cash,
where applicable) receivable by the holders of the Warrants after the effective
date of such dissolution pursuant to this Section 4 to a bank or trust company
having its principal office in Boston, Massachusetts, as trustee for the holder
or holders of the Warrants.
4.3 Continuation of Terms. Upon any reorganization, consolidation,
merger or transfer (and any dissolution following any transfer) referred to in
this Section 4, this Warrant shall continue in full force and effect and the
terms hereof shall be applicable to the shares of stock and other securities
and property receivable on the exercise of this Warrant after the consummation
of such reorganization, consolidation or merger or the effective date of
dissolution following any such transfer, as the case may be, and shall be
binding upon the issuer of any such stock or other securities, including, in
the case of any such transfer, the person acquiring all or substantially all of
the properties or assets of the Company, whether or not such person shall have
expressly assumed the terms of this Warrant as provided in Section 6.
5. Extraordinary Events. In the event that the Company shall (i) issue
additional shares of the Common Stock as a dividend or other distribution on
outstanding Common Stock, (ii) subdivide its outstanding shares of Common
Stock, or (iii) combine its outstanding shares of the Common Stock into a
smaller number of shares of the Common Stock, then, in each such event, the
Exercise Price shall, simultaneously with the happening of such event, be
adjusted by multiplying the then Exercise Price by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding immediately
prior to such event and the denominator of which shall be the number of shares
of Common Stock outstanding immediately after such event, and the product so
obtained shall thereafter be the Exercise Price then in effect. The Exercise
Price, as so adjusted, shall be readjusted in the same manner upon the
happening of any successive event or events described herein in this Section 5.
The holder of this Warrant shall thereafter, on the exercise hereof as provided
in Section 1, be entitled to receive that number of shares of Common Stock
determined by multiplying the number of shares of Common Stock which would
otherwise (but for the provisions of this Section 5) be issuable on such
exercise by a fraction of which (i) the numerator is the Exercise Price which
would otherwise (but for the provisions of this Section 5) be in effect, and
(ii) the denominator is the Exercise Price in effect on the date of such
exercise.
6. No Dilution or Impairment. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms of the Warrants, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the holders of the
Warrants against dilution or other impairment. Without limiting the generality
of the foregoing, the Company (a) will not increase the par value of any shares
of stock receivable on the exercise of the Warrants above the amount payable
therefor on such exercise, (b) will take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of stock on the exercise of all Warrants from time to
time outstanding, and (c) will not transfer all or substantially all of its
properties and assets to any other person (corporate or otherwise), or
consolidate with or merge into any other person or permit any such person to
consolidate with or merge into the Company (if the Company is not the surviving
person), unless such other person shall expressly assume in writing and will be
bound by all the terms of the Warrants.
7. Accountants' Certificate as to Adjustments. In each case of any
adjustment or readjustment in the shares of Common Stock issuable on the
exercise of the Warrants, the Company at its expense will promptly cause its
Chief Financial Officer or, if the holder of a Warrant so requests, independent
certified public accountants of recognized standing selected by the Company to
compute such adjustment or readjustment in accordance with the terms of the
Warrants and prepare a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based, including a statement of (a) the consideration received
or receivable by the Company for any additional shares of Common Stock issued
or sold or deemed to have been issued or sold, (b) the number of shares of
Common Stock outstanding or deemed to be outstanding, and (c) the Exercise
Price and the number of shares of Common Stock to be received upon exercise of
this Warrant, in effect immediately prior to such issue or sale and as adjusted
and readjusted as provided in this Warrant. The Company will forthwith mail a
copy of each such certificate to each holder of a Warrant, and will, on the
written request at any time of any holder of a Warrant, furnish to such holder
a like certificate setting forth the Exercise Price at the time in effect and
showing how it was calculated.
8. Notices of Record Date, etc. In the event of
(a) any taking by the Company of a record of the holders of any class
or securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities or property, or to receive any other right,
or
(b) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company or any transfer of
all or substantially all the assets of the Company to or consolidation or
merger of the Company with or into any other person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company, or
(d) any proposed issue or grant by the Company of any shares of stock
of any class or any other securities, or any right or option to subscribe
for, purchase or otherwise acquire any shares of stock of any class or any
other securities (other than the issue of Common Stock on the exercise of
the Warrants),
then and in each such event the Company will mail or cause to be mailed to each
registered holder of a Warrant a notice specifying (i) the date on which any
such record is to be taken for the purpose of such dividend, distribution or
right, and stating the amount and character of such dividend, distribution or
right, (ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock shall be entitled to exchange their
shares of Common Stock for securities or other property deliverable on such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up, and (iii) the amount and
character of any stock or other securities, or rights or options with respect
thereto, proposed to be issued or granted, the date of such proposed issue or
grant and the persons or class of persons to whom such proposed issue or grant
is to be offered or made. Such notice shall be mailed at least 20 days prior to
the date specified in such notice on which any such action is to be taken.
9. Reservation of Stock, etc., Issuable on Exercise of Warrants. The
Company will at all times reserve and keep available, solely for issuance and
delivery on the exercise of the Warrants, all shares of Common Stock from time
to time issuable on the exercise of the Warrants.
10. Exchange of Warrants. On surrender for exchange of any Warrant,
properly endorsed, to the Company, the Company at its expense will issue and
deliver to or on the order of the holder thereof a new Warrant or warrants of
like tenor, in the name of such holder or as such holder (upon payment by such
holder of any applicable transfer taxes and, if requested by the Company,
demonstration by such holder of compliance with applicable securities laws) may
direct, calling in the aggregate on the face or faces thereof for the number of
shares of Common Stock called for on the face or faces of the Warrant or
Warrants so surrendered.
11. Replacement of Warrants. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
any Warrant and, in the case of any such loss, theft or destruction of any
Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such warrant, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
12. Warrant Agent. The Company may, by written notice to each holder of a
Warrant, appoint an agent having an office in either Boston, Massachusetts or
New York, New York for the purpose of issuing Common Stock on the exercise of
the Warrants pursuant to Section 1, exchanging Warrants pursuant to Section 10,
and replacing Warrants pursuant to Section 11, or any of the foregoing, and
thereafter any such issuance, exchange or replacement, as the case may be,
shall be made at such office by such agent.
13. Remedies. The Company stipulates that the remedies at law of the
holder of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
14. Negotiability, etc. This Warrant is issued upon the following terms,
to all of which each holder or owner hereof by the taking hereof consents and
agrees:
(a) subject to compliance with all applicable securities laws, title
to this Warrant may be transferred by endorsement (by the holder hereof
executing the form of assignment at the end hereof) and delivery in the
same manner as in the case of a negotiable instrument transferable by
endorsement and delivery;
(b) any person in possession of this Warrant properly endorsed is
authorized to represent himself as absolute owner hereof and is empowered
to transfer absolute title hereto by endorsement and delivery hereof to a
bona fide purchaser hereof for value; each prior taker or owner waives and
renounces all of his equities or rights in this Warrant in favor of each
such bona fide purchaser, and each such bona fide purchaser shall acquire
absolute title hereto and to all rights represented hereby; and
(c) until this Warrant is transferred on the books of the Company,
the Company may treat the registered holder hereof as the absolute owner
hereof for all purposes, notwithstanding any notice to the contrary.
15. Notices, etc. All notices and other communications from the Company to
the holder of this Warrant shall be mailed by first class registered or
certified mail, postage prepaid, at such address as may have been furnished to
the Company in writing by such holder or, until any such holder furnishes to
the Company an address, then to, and at the address of, the last holder of this
Warrant who has so furnished an address to the Company.
16. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or
termination is sought. This Warrant shall be construed and enforced in
accordance with and governed by the laws of The Commonwealth of Massachusetts.
The headings in this Warrant are for purposes of reference only, and shall not
limit or otherwise affect any of the terms hereof. This Warrant is being
executed as an instrument under seal. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
17. Expiration; Automatic Exercise. The right to exercise this Warrant
shall expire at 5:00 P.M., Boston time, on June 30, 2006. Notwithstanding the
foregoing, this Warrant shall automatically be deemed to be exercised in full
pursuant to the provisions of Section 1.3 hereof, without any further action on
behalf of the holder hereof, immediately prior to the time this Warrant would
otherwise expire pursuant to the preceding sentence.
Dated: June 30, 1999 XXXXXX CORPORATION
/s/ Xxxx X. Xxxx
--------------------------------------
Xxxx X. Xxxx
Vice President - Finance, Chief Financial Officer,
Treasurer and Secretary
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
TO: XxXxxx Corporation
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant for, and to purchase thereunder__________shares
of Common Stock of XxXxxx Corporation and herewith makes payment of $__________
therefor, and requests that the certificates for such shares be issued in the
name of, and delivered to whose address is
______________________________
Dated: ___________________________________________
(Signature must conform to name of holder as
specified on the face of the Warrant)
______________________________
FORM OF ASSIGNMENT
(To be signed only on transfer of warrant)
For value received, the undersigned hereby sells, assigns, and transfers
unto ...................... the right represented by the within Warrant to
purchase shares of Common Stock of XxXxxx Corporation to which the within
Warrant relates, and appoints ____________________ Attorney to transfer such
right on the books of XxXxxx Corporation with full power of substitution in the
premises.
Dated: ________________________________________
(Signature must conform to name of holder as
specified on the face of the Warrant)
________________________________________
(Address)
Signed in the presence of:
______________________________
