EXHIBIT 6
[FORM OF NEWSCC WARRANT AGREEMENT]
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WARRANT AGREEMENT
between
XXXXX XXXXXX CORPORATION
and
MARINE MIDLAND BANK,
as Warrant Agent
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Dated as of [______________] [__], 1997
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TABLE OF CONTENTS
Page
Section 1. Definitions...................................................1
Section 2. Form of Warrant; Execution; Registration......................3
2.1 Form of Warrant; Execution of Warrants......................3
2.2 Registration................................................4
2.3 Countersignature of Warrants................................4
Section 3. Transfer and Exchange of Warrants.............................4
Section 4. Term of Warrants; Exercise of Warrants; Compliance with Government
Regulations; Restrictions on Transfer; Reduction of
Exercise Price...................................................5
4.1 Term of Warrants............................................5
4.2 Exercise of Warrants........................................5
4.3 Compliance with Government Regulations; Qualification
under the Securities Laws...............................6
4.4 Restrictions on Transfer....................................7
4.5 Reduction of Exercise Price.................................9
Section 5. Payment of Taxes..............................................10
Section 6. Mutilated or Missing Warrant Certificates.....................10
Section 7. Reservation of Warrant Shares.................................10
Section 8. Stock Exchange Listing........................................11
Section 9. Adjustment of Exercise Price; Number of Warrant Shares and
Shares of Capital Stock Warrants Are Exercisable Into............11
9.1 Mechanical Adjustments......................................11
(a) Adjustment for Change in Capital Stock.............11
(b) Adjustment for Rights Issue........................12
(c) Adjustment for Other Distributions.................12
(d) Current Market Price; Price Per Share..............12
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(e) When De Minimis Adjustment May Be Deferred..........14
(f) Adjustment in Exercise Price........................14
(g) When No Adjustment Required.........................14
(h) Shares of Common Stock..............................14
(i) Expiration of Rights...............................15
9.2 Voluntary Adjustment by the Company..........................15
9.3 Notice of Adjustment.........................................15
9.4 Preservation of Purchase Rights upon Merger or Consolidation.15
9.5 No Adjustment for Dividends..................................16
9.6 Statement on Warrants........................................16
Section 10. Fractional Interests..........................................16
Section 11. No Rights as Stockholders; Notices to Holders.................16
Section 12. Payments in U.................................................17
Section 13. Merger or Consolidation or Change of Name of Warrant Agent....18
Section 14. Appointment of Warrant Agent..................................18
14.1 Concerning the Warrant Agent................................18
14.2 Correctness of Statements...................................18
14.3 Breach of Covenants.........................................18
14.4 Performance of Duties.......................................19
14.5 Reliance on Counsel.........................................19
14.6 Proof of Actions Taken......................................19
14.7 Compensation................................................19
14.8 Legal Proceedings...........................................19
14.9 Other Transactions in Securities of Company.................20
14.10 Liability of Warrant Agent.................................20
14.11 Reliance on Documents......................................20
14.12 Validity of Agreement......................................20
14.13 Instructions from Company..................................20
Section 15. Change of Warrant Agent.......................................20
Section 16. Notices.......................................................21
Section 17. Cancellation of Warrants......................................21
Section 18. Supplements and Amendments....................................22
Section 19. Successors....................................................22
Section 20. Applicable Law................................................22
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Section 21. Benefits of this Agreement....................................22
Section 22. Counterparts..................................................22
Section 23. Captions......................................................22
EXHIBIT A
FORM OF WARRANT CERTIFICATE
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WARRANT AGREEMENT, dated as of [__________] [_____], 1997, by
and between XXXXX CORONA CORPORATION, a Delaware corporation (the "Company"),
and MARINE MIDLAND BANK, as Warrant Agent (together with any successors and
assigns, the "Warrant Agent").
W I T N E S S E T H :
WHEREAS, the Company was a Debtor and Debtor-in-Possession in
the case (the "Chapter 11 Case") filed in the United States Bankruptcy Court for
the District of Delaware (the "Bankruptcy Court"), entitled "In re Xxxxx Xxxxxx
Corporation, SCM Office Supplies, Inc., SCC LI Corp. and Xxxxx Manufacturing
Company, Debtors," Chapter 11 Case No. 95-788 (HSB), under the Bankruptcy Reform
Act of 1978, as amended (the "Bankruptcy Code");
WHEREAS, in connection with and as part of the transactions to
be consummated pursuant to the confirmation of the Company's Third Amended
Second Joint Plan of Reorganization (as amended, modified or supplemented from
time to time) in the Chapter 11 Case (the "Plan"), the Company has agreed to
issue Warrants for the purchase of an aggregate of 1,512,500 shares of Common
Stock of the Company (subject to adjustment as herein provided) (the
"Warrants");
WHEREAS, by Order dated [________] [___], 199[6], the
Bankruptcy Court confirmed the Plan;
WHEREAS, the Plan contemplates that the Company will enter
into this Warrant Agreement;
WHEREAS, the Company desires to issue the Warrants, each of
which entitles the holder thereof to purchase one share of its Common Stock
(each of said shares of Common Stock deliverable upon exercise of the Warrants a
"Warrant Share"); and
WHEREAS, the Company wishes the Warrant Agent to act on behalf
of the Company, and the Warrant Agent is willing to so act in connection with
the issuance, division, transfer, exchange and exercise of Warrants.
NOW, THEREFORE, in consideration of the foregoing, to
implement the terms of the Plan, and for the purpose of defining the terms and
provisions of the Warrants and the respective rights and obligations thereunder
of the Company and the registered owners of the Warrants and any security into
which they may be exchanged (the "Holders"), the Company and the Warrant Agent
hereby agree as follows:
Section 1. Definitions. The following terms, as used herein,
have the following meanings (all terms defined herein in the singular to have
the correlative meanings when used in the plural and vice versa):
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1.1 "Agreement" means this Warrant Agreement, as the same may
be amended, modified or supplemented from time to time.
1.2 "Assets" has the meaning ascribed to such term in Section
9.1(c) hereof.
1.3 "Bankruptcy Code" has the meaning ascribed to such term in
the preamble hereto.
1.4 "Bankruptcy Court" has the meaning ascribed to such term
in the preamble hereto.
1.5 "Business Day" means a day other than (a) a Saturday or
Sunday, (b) any day on which banking institutions located in the City of New
York, New York are required or authorized by law or by local proclamation to
close or (c) any day on which the New York Stock Exchange is closed.
1.6 "Commercially Reasonable Efforts" when used with respect
to any obligation to be performed or term or provision to be observed hereunder,
means such efforts as a prudent Person seeking the benefits of such performance
or action would make, use, apply or exercise to preserve, protect or advance its
rights or interests, provided, that such efforts do not require such Person to
incur a material financial cost or a substantial risk of material liability
unless such cost or liability (i) would customarily be incurred in the course of
performance or observance of the relevant obligation, term or provision, (ii) is
caused by or results from the wrongful act or negligence of the Person whose
performance or observance is required hereunder or (iii) is not excessive or
unreasonable in view of the rights or interests to be preserved, protected or
advanced. Such efforts may include, without limitation, the expenditure of such
funds and retention by such Person of such accountants, attorneys or other
experts or advisors as may be necessary or appropriate to effect the relevant
action; and the undertaking of any special audit or internal investigation that
may be necessary or appropriate to effect the relevant action.
1.7 "Common Stock" means the common stock, par value $.001, of
the Company.
1.8 "Current Market Price" has the meaning ascribed to such
term in Section 9.1(d) hereof.
1.9 "Effective Date" has the meaning ascribed to such term in
the Plan.
1.10 "Exercise Period" has the meaning ascribed to such term
in Section 4.1 hereof.
1.11 "Exercise Price" means $[ ] per share of Common Stock, as
such amount may be reduced pursuant to Section 4.5 hereof and as adjusted
pursuant to Section 9 hereof.
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1.12 "Holders" has the meaning ascribed to such term in the
preamble hereto.
1.13 "NASD" means the National Association of Securities
Dealers, Inc.
1.14 "Number of Shares" has the meaning ascribed to such term
in Section 9.1(d)(ii) hereof.
1.15 "Person" means a natural person, a corporation, a
partnership, a trust, a joint venture, any regulatory authority or any other
entity or organization.
1.16 "Plan" has the meaning ascribed to such term in the
preamble hereto.
1.17 "Price Per Share" has the meaning ascribed to such term
in Section 9.1(d)(ii) hereof.
1.18 "Proceeds" has the meaning ascribed to such term in
Section 9.1(d)(ii) hereof.
1.19 "Rights" has the meaning ascribed to such term in Section
9.1(b) hereof.
1.20 "SEC" means the United States Securities and Exchange
Commission, or any successor governmental agency or authority thereto.
1.21 "Subsidiary" means any corporation or other legal entity
a majority of the voting equity or equity interests of which are owned, directly
or indirectly, by the Company.
1.22 "Transfer Agent" has the meaning ascribed to such term in
Section 7 hereof.
1.23 "Warrants" has the meaning ascribed to such term in the
preamble hereto.
1.24 "Warrant Certificates" has the meaning ascribed to such
term in Section 2.1 hereof.
1.25 "Warrant Register" has the meaning ascribed to such term
in Section 2.2 hereof.
1.26 "Warrant Share" has the meaning ascribed to such term in
the preamble hereto.
Section 2. Form of Warrant; Execution; Registration.
2.1 Form of Warrant; Execution of Warrants. The certificates
evidencing the Warrants (the "Warrant Certificates") shall be in registered form
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only, shall be in the form set forth as Exhibit A hereto, and shall bear such
legends as the Company shall determine may be required to conform to or provide
compliance with any applicable federal or state securities law, either generally
or with respect to particular Holders. The Warrant Certificates shall be signed
on behalf of the Company by its Chairman of the Board, President or one of its
Vice Presidents. The signature of any such officer on the Warrant Certificates
may be manual or by facsimile. Any Warrant Certificate may be signed on behalf
of the Company by any person who, at the actual date of the execution of such
Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate. Each Warrant Certificate shall be dated the date it is
countersigned by the Warrant Agent pursuant to Section 2.3 hereof.
2.2 Registration. The Warrant Certificates shall be numbered
and shall be registered on the books of the Company maintained at the principal
office of the Warrant Agent initially in New York (or such other place in the
continental United States as the Warrant Agent shall from time to time notify
the Company and the Holders in writing) (the "Warrant Register") as they are
issued. The Company and the Warrant Agent shall be entitled to treat the
registered owner of any Warrant as the owner in fact thereof for all purposes
and shall not be bound to recognize any equitable or other claim to or interest
in such Warrant on the part of any other person.
2.3 Countersignature of Warrants. The Warrant Certificates
shall be countersigned by the Warrant Agent and shall not be valid for any
purpose unless so countersigned. Warrant Certificates may be countersigned,
however, by the Warrant Agent and may be delivered by the Warrant Agent
notwithstanding that the persons whose manual or facsimile signatures appear
thereon as proper officers of the Company shall have ceased to be such officers
at the time of such countersignature, issuance or delivery. The Warrant Agent
shall, upon written instructions of the Chairman of the Board, the President,
any Vice President, the Treasurer or the Secretary of the Company, countersign,
issue and deliver Warrant Certificates entitling the Holders thereof to purchase
not more than an aggregate of 1,512,500 Warrant Shares (subject to adjustment
pursuant to Section 9 hereof) and shall countersign, issue and deliver Warrant
Certificates as otherwise provided in this Agreement.
Section 3. Transfer and Exchange of Warrants. Subject to the
terms hereof, the Warrant Agent shall initially countersign, register in the
Warrant Register and deliver Warrants hereunder in accordance with the written
instructions of the Company. Subject to the terms hereof and the receipt of such
documentation as the Warrant Agent may reasonably require, the Warrant Agent
shall thereafter from time to time register the transfer of any outstanding
Warrants upon the records to be maintained by it for that purpose, upon
surrender of the Warrant Certificate or Certificates evidencing such Warrants
duly endorsed or accompanied (if so required by it) by a written instrument or
instruments of transfer in form reasonably satisfactory to the Warrant Agent,
duly executed by the registered Holder or Holders thereof or by the duly
appointed legal representative thereof or by a duly authorized attorney. Subject
to the terms of this Agreement, each Warrant Certificate may be exchanged for
another Warrant Certificate or Certificates entitling the Holder thereof to
purchase a like aggregate number of Warrant Shares as the Warrant Certificate or
Certificates surrendered then entitles such Holder to purchase. Any Holder
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desiring to exchange a Warrant Certificate or Certificates shall make such
request in writing delivered to the Warrant Agent, and shall surrender, duly
endorsed or accompanied (if so required by the Warrant Agent) by a written
instrument or instruments of transfer in form reasonably satisfactory to the
Warrant Agent, the Warrant Certificate or Certificates to be so exchanged. Upon
registration of transfer, the Company shall issue and the Warrant Agent shall
countersign and deliver by certified mail a new Warrant Certificate or
Certificates to the persons entitled thereto.
No service charge shall be made for any exchange or
registration of transfer of a Warrant Certificate or of Warrant Certificates,
but the Company may require payment of a sum sufficient to cover any stamp tax
or other tax or other governmental charge that is imposed in connection with any
such exchange or registration of transfer pursuant to Section 5 hereof.
By accepting the initial delivery, transfer or exchange of
Warrants, each Holder shall be deemed to agree to the terms of this Agreement as
it may be in effect from time to time, including any amendments or supplements
duly adopted in accordance with Section 18 hereof.
Section 4. Term of Warrants; Exercise of Warrants; Compliance
with Government Regulations; Restrictions on Transfer; Reduction of Exercise
Price.
4.1 Term of Warrants. Subject to the terms of this Agreement,
each Holder shall have the right, which may be exercised at any time during the
period commencing at 9:00 a.m., New York City time, on the date occurring six
(6) months after the Effective Date and ending at 5:00 p.m., New York City time,
on the date occurring two (2) years after the Effective Date (the "Exercise
Period"), to receive from the Company the number of Warrant Shares which the
Holder may at the time be entitled to receive upon exercise of such Warrants and
payment of the Exercise Price then in effect for such Warrant Shares, and the
Warrant Shares issued to a Holder upon exercise of its Warrants shall be duly
authorized, validly issued, fully paid, nonassessable and shall not have been
issued in violation of or subject to any preemptive rights. Each Warrant not
exercised prior to the expiration of the Exercise Period shall become void, and
all rights thereunder and all rights in respect thereof under this Agreement
shall cease as of the expiration of the Exercise Period.
4.2 Exercise of Warrants. During the Exercise Period, each
Holder may, subject to this Agreement, exercise from time to time some or all of
the Warrants evidenced by its Warrant Certificate(s) by (i) surrendering to the
Company at the principal office of the Warrant Agent such Warrant Certificate(s)
with the form of election to purchase on the reverse thereof duly filled in and
signed, which signature shall be guaranteed by a bank or trust company having an
office or correspondent in the United States or a broker or dealer which is a
member of a registered securities exchange or the NASD, and (ii) paying to the
Warrant Agent for the account of the Company the Exercise Price, for the number
of Warrant Shares in respect of which such Warrants are exercised. Warrants
shall be deemed exercised on the date such Warrant Certificate(s) are
surrendered to the Warrant Agent and tender of payment of the Exercise Price is
made. Payment of the aggregate Exercise Price shall be made in cash by wire
transfer of immediately available funds to the Warrant Agent for the account of
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the Company or by certified or official bank check or checks to the order of the
Company or by any combination thereof.
Upon the exercise of any Warrants in accordance with this
Agreement, the Company shall issue and cause to be delivered with all reasonable
dispatch, to or upon the written order of the Holder and in such name or names
as the Holder may designate, a certificate or certificates for the number of
full Warrant Shares issuable upon the exercise of such Warrants and shall take
such other actions at its sole expense as are necessary to complete the exercise
of the Warrants (including, without limitation, payment of any cash with respect
to fractional interests required under Section 10 hereof). The Warrant Agent
shall have no responsibility or liability for such issuance or the determination
of the number of Warrant Shares issuable upon such exercise. The certificate or
certificates representing such Warrant Shares shall be deemed to have been
issued and any person so designated to be named therein shall be deemed to have
become a holder of record of such Warrant Shares as of the date the Warrants are
exercised hereunder. Each Warrant Share, when issued upon exercise of the
Warrants, shall be duly authorized, validly issued, fully paid and nonassessable
and will not have been issued in violation of or subject to any preemptive
rights.
In the event that less than all of the Warrants evidenced by a
Warrant Certificate are exercised, the Holder thereof shall be entitled to
receive a new Warrant Certificate or Certificates as specified by such Holder
evidencing the remaining Warrant or Warrants, and the Warrant Agent is hereby
irrevocably authorized by the Company to countersign, issue and deliver the
required new Warrant Certificate or Certificates evidencing such remaining
Warrant or Warrants pursuant to the provisions of this Section 4.2 hereof and of
Section 3 hereof. The Company, whenever required by the Warrant Agent, will
supply the Warrant Agent with Warrant Certificates duly executed on behalf of
the Company for such purpose.
Upon delivery of the Warrant Shares issuable upon exercise in
accordance herewith and of any required new Warrant Certificates, the Company
shall direct the Warrant Agent by written order to cancel the Warrant
Certificates surrendered upon exercise. Such canceled Warrant Certificates shall
then be disposed of by the Warrant Agent in a manner permitted by applicable
laws and satisfactory to the Company in accordance with its written instructions
to the Warrant Agent. The Warrant Agent shall account promptly to the Company
with respect to Warrants exercised and concurrently pay to the Company all
amounts received by the Warrant Agent upon exercise of such Warrants.
The Warrant Agent shall keep copies of this Agreement and any
notices given or received hereunder available for inspection by the Holders
during normal business hours at its office. The Company shall at its sole
expense supply the Warrant Agent from time to time with such numbers of copies
of this Agreement as the Warrant Agent may request.
4.3 Compliance with Government Regulations; Qualification
under the Securities Laws. The Company covenants that if the shares of Common
Stock required to be reserved for purposes of exercise of Warrants require,
under any federal or state law, registration with or approval of any
governmental authority before such shares may be issued upon exercise, the
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Company will, unless the Company has received an opinion of counsel to the
effect that such registration is not then permitted by such laws, use its
Commercially Reasonable Efforts to cause such shares to be duly so registered or
approved, as the case may be; provided that in no event shall such shares of
Common Stock be issued, and the exercise of all Warrants shall be suspended, for
the period during which such registration or approval is required but not in
effect; provided, further, that the Exercise Period shall be extended one day
for each day (or portion thereof) that any such suspension is in effect. The
Company shall promptly notify the Warrant Agent of any such suspension, and the
Warrant Agent shall have no duty, responsibility or liability in respect of any
shares of Common Stock issued or delivered prior to its receipt of such notice.
The Company shall promptly notify the Warrant Agent of the termination of any
such suspension, and such notice shall set forth the number of days that the
Exercise Period shall be extended as a result of such suspension. The foregoing
provisions of this Section 4.3 shall not require that the Company effect or
obtain any such registration or approval of Warrant Shares in order to allow the
resale or transfer thereof by any Person that may be an underwriter for purposes
of Section 1145 of the Bankruptcy Code.
4.4 Restrictions on Transfer. (a) Article IV, Section 5 of the
Company's Restated Certificate of Incorporation provides that:
Until June 30, 1999, (a) any attempted sale, transfer,
assignment, conveyance, grant, pledge, gift or other disposition of any share or
shares of stock of the Company (within the meaning of Section 382 of the
Internal Revenue Code of 1986, as amended (the "Tax Code")) or any option or
right to purchase such stock, as defined in the Treasury Regulations under
Section 382 of the Tax Code, to any person or entity (or group of persons or
entities acting in concert), or any attempted exercise of the aforementioned
option or right to purchase such stock by any person or entity (or group of
persons or entities acting in concert), who either directly or indirectly owns
or would be treated as owning, or whose shares are or would be attributed to any
person or entity who directly or indirectly owns or would be treated as owning,
in either case prior to the purported transfer or exercise and after giving
effect to the applicable attribution rules of the Tax Code and applicable
Treasury Regulations, 5 percent or more of the value of the outstanding stock of
the Company or otherwise treated as a 5-percent (5%) shareholder (within the
meaning of Section 382 of the Tax Code), regardless of the percent or the value
of the stock owned, shall be void ab initio insofar as it purports to transfer
ownership or rights in respect of such stock to the purported transferee and (b)
any attempted sale, transfer, assignment, conveyance, grant, gift, pledge or
other disposition of any share of stock of the Company (within the meaning of
Section 382 of the Tax Code) or any option or right to purchase such stock, as
defined in the Treasury Regulations under Section 382 of the Tax Code, to any
person or entity (or group of persons or entities acting in concert) or any
attempted exercise of the aforementioned option or right to purchase such stock
by any person or entity (or group of persons or entities acting in concert) not
described in clause (a) who directly or indirectly would own, or whose shares
would be attributed to any person or entity who directly or indirectly would
own, in each case as a result of the purported transfer or exercise and after
giving effect to the applicable attribution rules of the Tax Code and applicable
Treasury Regulations, 5-percent (5%) or more of the value of any of the stock of
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the Company (or otherwise treated asa 5-percent (5%) shareholder within the
meaning of Section 382 of the Tax Code), shall, as to that number of shares
causing such person or entity to be a 5-percent (5%) shareholder, be void ab
initio insofar as it purports to transfer ownership or rights in respect of such
stock to the purported transferee; provided, however, if the Company either does
not qualify under Section 382(l)(5) of the Tax Code or chooses to make an
election under Section 382(l)(5)(H) of the Tax Code (or the applicable provision
then in effect) not to have the provisions of Section 382(l)(5) of the Tax Code
apply, the restrictions described above in clauses (a) and (b) shall be deemed
to lapse and shall have no further force or effect as of the earlier of the date
the Company is aware that it does not qualify under Section 382(l)(5) of the Tax
Code and the date of such election; provided further, however, that neither of
the restrictions described above in the foregoing clauses (a) or (b) shall
prevent a valid transfer or exercise if (i) the transferor or exercisor, as the
case may be, obtains the written approval of the Board of Directors of the
Company and provides the Company with an opinion of counsel satisfactory to the
Company that, assuming, as of the date of such opinion, the full exercise of all
warrants issued by, and any options granted pursuant to any stock option plan
of, the Company, the transfer or exercise shall not result in the application of
any tax law limitation on the use of the Company's loss carryforwards or other
tax attributes or (ii) a tender offer, within the meaning of the Securities
Exchange Act of 1934, as amended, and pursuant to the rules and regulations
thereof, is made by a bona fide third party purchaser to purchase at least
sixty-six and two thirds percent (66 2/3%) of the issued and outstanding common
stock of the Company and the offeror (A) agrees to effect, within ninety (90)
days of the consummation of the tender offer, a back-end merger in which all
non-tendering shareholders would receive the same consideration as paid in the
tender offer, and (B) has received the tender of sufficient shares to effect
such merger. Without limiting or restricting in any manner the effectiveness of
the foregoing provisions, the Company may rely and shall be protected in relying
on its shareholder lists and stock transfer records for all purposes relating to
such notices, voting, payment of dividend or other communication or
distributions to its shareholders.
In the absence of special approval by the Board of Directors,
a purported transfer or exercise of shares in excess of the shares that can be
transferred or exercised pursuant to this Section 5 (the "Prohibited Shares") to
the purported acquiror (the "Purported Acquiror") is not effective to transfer
ownership of such Prohibited Shares. On demand by the Company, which demand must
be made within thirty (30) days of the time the Company learns of the transfer
or exercise of the Prohibited Shares, a Purported Acquiror must transfer any
certificate or other evidence of ownership of the Prohibited Shares within the
Purported Acquiror's possession or control, together with any dividends or other
distributions ("Distributions") that were received by the Purported Acquiror
from the Company with respect to the Prohibited Shares, to an agent designated
by the Company (the "Agent"). The Agent will sell the Prohibited Shares in an
arm's length transaction (over a stock exchange, if possible), and the Purported
Acquiror will receive an amount of sales proceeds not in excess of the price
paid or consideration surrendered by the Purported Acquiror for the Prohibited
Shares (or the fair market value of the Prohibited Shares at the time of any
attempted transfer to the Purported Acquiror by gift, inheritance, or a similar
transfer). If the Purported Acquiror has sold the Prohibited Shares prior to
receiving the Company's demand to surrender the Prohibited Shares to the Agent,
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the Purported Acquiror shall be deemed to have sold the Prohibited Shares as an
Agent for the initial transferor, or, in the case where the Prohibited Shares
are acquired pursuant to the exercise of an option or right to purchase stock of
the Company, for the Company, and shall be required to transfer to the Agent any
proceeds of such sale and any Distributions.
In the case of an attempted exercise of an option or a right
to purchase stock of the Company, the Agent will pay to the Company any sales
proceeds in excess of those due to the Purported Acquiror, together with any
distributions received by the Agent. In all other cases, if the initial
transferor can be identified, the Agent will pay to it any sales proceeds in
excess of those due to the Purported Acquiror, together with any distributions
received by the Agent. If the initial transferor cannot be identified within
ninety (90) days of receipt of such sales proceeds, if any, the Agent may pay
any such amounts to a charity of its choosing. In no event shall amounts paid to
the Agent inure to the benefit of the Company (except as set forth in the first
sentence of this paragraph) or the Agent, but such amounts may be used to cover
expenses of the Agent in attempting to identify the initial transferor.
If the Purported Acquiror fails to surrender the Prohibited
Shares within the next thirty (30) business days from the demand by the Company,
then the Company may institute legal proceedings to compel the surrender. The
Company shall be entitled to damages, including reasonable attorneys' fees and
costs, from the Purported Acquiror, on account of such purported transfer.
(b) Legend. Until June 30, 1999, all Warrant Certificates
shall bear a conspicuous legend on the face thereof as follows:
"THESE WARRANTS AND THE WARRANT SHARES ACQUIRED UPON EXERCISE
OF THE WARRANTS REPRESENTED HEREBY ARE SUBJECT TO RESTRICTIONS
PURSUANT TO ARTICLE IV, SECTION 5 OF THE RESTATED CERTIFICATE
OF INCORPORATION OF THE COMPANY WHICH ARTICLE IS REPRINTED IN
ITS ENTIRETY ON THE REVERSE SIDE OF THIS CERTIFICATE."
4.5 Reduction of Exercise Price. The Exercise Price shall be
subject to reduction at the election of the Board of Directors of the Company,
made not earlier than thirty (30) days, and not later than twenty (20) days,
prior to the first day of the Exercise Period, if the Board of Directors shall
determine, in its sole discretion, that changes in the total amounts of
estimated Unsecured Class Cash and of General Unsecured Claims that may be
Allowed Claims or Reserved Claims (such terms being used herein as defined in
the Plan) from the amounts thereof estimated in connection with the confirmation
of the Plan make such reduction advisable, provided that the Board of Directors
shall have no obligation to make any such determination or to elect that the
Exercise Price be so reduced, and each Holder agrees, by its acceptance of a
Warrant, that it shall not have any claim against the Company or any of its
directors or officers in respect of the matters provided for in this Section
4.5. If the Exercise Price is to be reduced pursuant to the foregoing
provisions, the Company shall give notice thereof to the Warrant Agent not later
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than fifteen (15) days prior to the first day of the Exercise Period, and the
Warrant Agent shall mail to each Holder not later than ten (10) days prior to
the first day of the Exercise Period notice of such reduction, specifying the
Exercise Price as so reduced.
Section 5. Payment of Taxes. The Company will pay all
documentary stamp and other like taxes, if any, attributable to the initial
issuance and delivery of the Warrants and the initial issuance and delivery of
the Warrant Shares upon the exercise of Warrants, provided, that the Company
shall not be required to pay any tax or taxes which may be payable in respect of
any transfer of the Warrants or involved in the issuance or delivery of any
Warrant Shares in a name other than that of the Holder of the Warrants being
exercised, and the Warrant Agent shall not register any such transfer or issue
or deliver any Warrant Certificate(s) or Warrant Shares unless or until the
persons requesting the registration or issuance shall have paid to the Warrant
Agent for the account of the Company the amount of such tax, if any, or shall
have established to the reasonable satisfaction of the Company that such tax, if
any, has been paid.
Section 6. Mutilated or Missing Warrant Certificates. In the
event that any Warrant Certificate shall be mutilated, lost, stolen or
destroyed, the Company shall issue, and at the direction of the Company by
written order the Warrant Agent shall countersign and deliver in exchange and
substitution for and upon cancellation of the mutilated Warrant Certificate or
in lieu of and substitution for the Warrant Certificate lost, stolen or
destroyed, a new Warrant Certificate of like tenor and representing an
equivalent right or interest, but only upon receipt of evidence reasonably
satisfactory to the Company and the Warrant Agent of such loss, theft or
destruction of such Warrant Certificate and an indemnity or bond, if requested
by the Company or the Warrant Agent, also reasonably satisfactory to them. An
applicant for such a substitute Warrant Certificate shall also comply with such
other reasonable procedures as the Company or the Warrant Agent may reasonably
require.
Section 7. Reservation of Warrant Shares. There have been
reserved, and the Company shall at all times keep reserved, out of its
authorized Common Stock, free of all preemptive rights, a number of shares of
Common Stock sufficient to provide for the exercise of the rights of purchase
represented by the outstanding Warrants. The transfer agent for the Common Stock
and every subsequent or other transfer agent for any shares of the Company's
capital stock issuable upon the exercise of the Warrants (each, a "Transfer
Agent") will be and are hereby irrevocably authorized and directed at all times
to reserve such number of authorized shares as shall be required for such
purpose. The Company will keep a copy of this Agreement on file with each
Transfer Agent. The Warrant Agent is hereby irrevocably authorized to
requisition from time to time from the Company or a Transfer Agent, as the case
may be, the certificates for Warrant Shares required to honor outstanding
Warrants upon exercise thereof in accordance with the terms of this Agreement.
The Company will supply its Transfer Agents with duly executed stock
certificates for such purposes and will itself provide or otherwise make
available any cash which may be payable as provided in Section 10 hereof. The
Company will furnish to its Transfer Agents a copy of all notices of adjustments
and certificates related thereto, transmitted to each Holder pursuant to Section
9.3 hereof. The Company will give the Warrant Agent prompt notice of any change
in any Transfer Agent or any change of address of any Transfer Agent.
- 10 -
Before taking any action which would cause an adjustment
pursuant to Section 9 reducing the Exercise Price, the Company will take any and
all corporate action which may be necessary in order that the Company may
validly and legally issue fully paid and nonassessable Warrant Shares at the
Exercise Price as so adjusted.
Section 8. Stock Exchange Listing. The Company shall use its
Commercially Reasonable Efforts (including requests for waivers) to have the
Warrant Shares listed on such stock exchange, if any, or included in such
national quotation system, if any, on which the outstanding Common Stock is
listed or included for quotation and to maintain such listing or inclusion for
so long as the outstanding Common Stock is so listed or included. Any such
listing and inclusion shall be at the Company's sole expense.
Section 9. Adjustment of Exercise Price; Number of Warrant
Shares and Shares of Capital Stock Warrants Are Exercisable Into. The number and
kind of securities purchasable upon the exercise of each Warrant, and the
Exercise Price, shall be subject to adjustment from time to time upon the
happening of certain events, as hereinafter described.
9.1 Mechanical Adjustments. The number of Warrant Shares
purchasable upon the exercise of each Warrant and the Exercise Price shall be
subject to adjustment as follows:
(a) Adjustment for Change in Capital Stock. Subject
to paragraphs (e) and (g) below, in case the Company shall (i) pay a
dividend on its outstanding shares of Common Stock in shares of Common
Stock or make a distribution of shares of Common Stock on its
outstanding shares of Common Stock, (ii) make a distribution on its
outstanding shares of Common Stock in shares of its capital stock other
than Common Stock, (iii) subdivide its outstanding shares of Common
Stock into a greater number of shares of Common Stock, (iv) combine its
outstanding shares of Common Stock into a smaller number of shares of
Common Stock, or (v) issue, by reclassification of its shares of Common
Stock, other securities of the Company (including any such
reclassification in connection with a consolidation or merger in which
the Company is the surviving entity), then the number of Warrant Shares
purchasable upon exercise of each Warrant immediately prior thereto
shall be adjusted so that the Holder of each Warrant shall be entitled
to receive the kind and number of Warrant Shares or other securities of
the Company which such Holder would have owned or have been entitled to
receive upon the happening of any of the events described above had
such Warrant been exercised in full immediately prior to the happening
of such event or any record date with respect thereto. If a Holder is
entitled to receive shares of two or more classes of capital stock of
the Company pursuant to the foregoing upon exercise of Warrants, the
allocation of the adjusted Exercise Price between such classes of
capital stock shall be determined reasonably and in good faith by the
Board of Directors of the Company. After such allocation, the exercise
privilege and the Exercise Price with respect to each class of capital
stock shall thereafter be subject to adjustment on terms substantially
identical to those applicable to Common Stock in this Section 9. An
adjustment made pursuant to this paragraph (a) shall become effective
- 11 -
immediately after the record date for such event or, if none,
immediately after the effective date of such event. Such adjustment
shall be made successively whenever such an event occurs.
(b) Adjustment for Rights Issue. Subject to
paragraphs (e) and (g) below, in case the Company shall issue rights,
options or warrants (collectively, "Rights") to all holders of its
outstanding Common Stock entitling them to subscribe for or purchase
shares of Common Stock at a Price Per Share which is lower at the
record date mentioned below than the then Current Market Price per
share of Common Stock, the number of Warrant Shares thereafter
purchasable upon the exercise of each Warrant shall be determined by
multiplying the number of Warrant Shares theretofore purchasable upon
exercise of each Warrant by a fraction, the numerator of which shall be
the number of shares of Common Stock outstanding on the date of
issuance of such Rights plus the additional Number of Shares of Common
Stock offered for subscription or purchase in connection with such
Rights and the denominator of which shall be the number of shares of
Common Stock outstanding on the date of issuance of such Rights plus
the number of shares which the aggregate Proceeds received or
receivable by the Company upon exercise of such Rights would purchase
at the Current Market Price per share of Common Stock at such record
date. Such adjustment shall be made whenever Rights are issued, and
shall become effective immediately after the record date for the
determination of stockholders entitled to receive Rights.
(c) Adjustment for Other Distributions. Subject to
paragraphs (e) and (g) below, in case the Company shall distribute to
all holders of its shares of Common Stock (x) evidences of indebtedness
or assets (excluding cash dividends or distributions payable out of the
consolidated earnings or surplus legally available for such dividends
or distributions and dividends or distributions referred to in
paragraphs (a) or (b) above) of the Company or any Subsidiary, or (y)
shares of capital stock of a Subsidiary (such evidences of
indebtedness, assets and securities as set forth in clauses (x) and (y)
above, collectively, "Assets"), then in each case the number of Warrant
Shares thereafter purchasable upon the exercise of each Warrant shall
be determined by multiplying the number of Warrant Shares theretofore
purchasable upon the exercise of each Warrant by a fraction, the
numerator of which shall be the Current Market Price per share of
Common Stock on the date of such distribution and the denominator of
which shall be such Current Market Price per share of Common Stock less
the fair value as of such record date as determined reasonably and in
good faith by the Board of Directors of the Company of the portion of
the Assets applicable to one share of Common Stock. Such adjustment
shall be made whenever any such distribution is made, and shall become
effective on the date of distribution retroactive to the record date
for the determination of stockholders entitled to receive such
distribution.
(d) Current Market Price; Price Per Share. (i) For
the purpose of any computation under Section 4.2 hereof or this Section
9.1, the "Current Market Price" per share of Common Stock at any date
shall be the average of the daily closing prices for the 20 consecutive
trading days preceding the date of such computation.
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The closing price for each day shall be (x) if the Common Stock shall
be then listed or admitted to trading on the New York Stock Exchange,
the closing price on the NYSE-Consolidated Tape (or any successor
composite tape reporting transactions on the New York Stock Exchange)
or, if such a composite tape shall not be in use or shall not report
transactions in the Common Stock, or if the Common Stock shall be
listed on a stock exchange other than the New York Stock Exchange, the
last reported sales price regular way or, in case no such reported sale
takes place on such day, the average of the closing bid and asked
prices regular way for such day, in each case on the principal national
securities exchange on which the shares of Common Stock are listed or
admitted to trading (which shall be the national securities exchange on
which the greatest number of shares of the Common Stock have been
traded during such 20 consecutive trading days) or (y) if the Common
Stock is not listed or admitted to trading, the average of the closing
sale prices as reported by the NASDAQ National Market System or, if the
Common Stock is not included on such system, the average of the closing
bid and asked prices of the Common Stock in the over-the-counter market
as reported by any system maintained by the NASD or any comparable
system or, if the Common Stock is not included for quotation in any
such system, the average of the closing bid and asked prices as
furnished by two members of the NASD selected reasonably and in good
faith from time to time by the Board of Directors for that purpose. In
the absence of one or more such quotations, the Current Market Price
per share of the Common Stock shall be determined reasonably and in
good faith by the Board of Directors of the Company.
(ii) For purposes of this Section 9.1, "Price Per
Share" shall be defined and determined according to the following
formula:
P = R/N
where
P = Price Per Share;
R = the "Proceeds" received or receivable by the
Company in respect of Rights which shall be the total
amount received or receivable by the Company in
consideration for the issuance and sale of such
Rights plus the aggregate amount of additional
consideration payable to the Company upon exercise
thereof; provided that the proceeds received or
receivable by the Company shall be the net cash
proceeds after deducting therefrom any compensation
paid or discount allowed in the sale, underwriting or
purchase thereof by underwriters or dealers or others
performing similar services; and
N = the "Number of Shares," which in the case of
Rights is the maximum number of shares of Common
Stock initially issuable upon exercise thereof.
- 13 -
(e) When De Minimis Adjustment May Be Deferred. No
adjustment in the number of Warrant Shares purchasable hereunder shall
be required unless such adjustment would require an increase or
decrease of at least one percent (1%) in the number of Warrant Shares
purchasable upon the exercise of each Warrant, provided that any
adjustments which by reason of this paragraph (e) are not required to
be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations shall be made to the nearest
one-thousandth of a Warrant Share and the nearest cent.
(f) Adjustment in Exercise Price. Whenever the number
of Warrant Shares purchasable upon the exercise of each Warrant is
adjusted as herein provided, the Exercise Price payable upon exercise
of each Warrant immediately prior to such adjustment shall be adjusted
by multiplying such Exercise Price by a fraction, the numerator of
which shall be the number of Warrant Shares purchasable upon the
exercise of each Warrant immediately prior to such adjustment and the
denominator of which shall be the number of Warrant Shares purchasable
immediately thereafter.
(g) When No Adjustment Required. No adjustment in the
number of Warrant Shares purchasable upon the exercise of each Warrant
need be made under this Section 9.1 in connection with the issuance of
Common Stock, options, rights, warrants or other securities pursuant to
the Plan or the Rights Agreement approved by the Bankruptcy Court.
Additionally, no adjustment need be made if the Company issues or
distributes to each Holder of Warrants the shares, rights, options,
warrants, evidences of indebtedness, assets or other securities
referred to in this Section 9.1 which each Holder of Warrants would
have been entitled to receive had the Warrants been exercised for the
number of Warrant Shares for which Warrants are then exercisable prior
to the happening of such event or the record date with respect thereto.
No adjustment in the number of Warrant Shares will be made for a change
in the par value of the shares of Common Stock.
(h) Shares of Common Stock. For all purposes of this
Agreement, the term "shares of Common Stock" shall mean (i) the class
of stock designated as the Common Stock of the Company at the date of
this Agreement or (ii) any other class of stock resulting from
successive changes or reclassification of such shares consisting solely
of changes in par value, or from par value to no par value, or from no
par value to par value. In the event that at any time, as a result of
an adjustment made pursuant to this Section 9.1, the Holders shall
become entitled to purchase any securities of the Company other than
shares of Common Stock, thereafter the number of such other shares so
purchasable upon exercise of each Warrant and the Exercise Price of
such shares shall be subject to adjustment from time to time in a
manner and on terms substantially identical to the provisions with
respect to the Warrant Shares contained in paragraphs (a) through (g)
above, and the provisions of this Agreement with respect to the Warrant
Shares shall apply on like terms to any such other securities.
- 14 -
(i) Expiration of Rights. Upon the expiration of any
Rights, if any thereof shall not have been exercised, the Exercise
Price and the number of Warrant Shares purchasable upon the exercise of
each Warrant shall, upon such expiration, be readjusted and shall
thereafter be such as it would have been had it been originally
adjusted (or had the original adjustment not been required, as the case
may be) as if (A) the only shares of Common Stock so issued were the
shares of Common Stock, if any, actually issued or sold upon the
exercise of such Rights and (B) such shares of Common Stock, if any,
were issued or sold for the consideration actually received by the
Company upon such exercise plus the aggregate consideration, if any,
actually received by the Company for the issuance of all of such Rights
whether or not exercised, provided that no such readjustment shall have
the effect of increasing the Exercise Price or decreasing the number of
Warrant Shares purchasable upon the exercise of each Warrant by an
amount in excess of the amount of the adjustment initially made in
respect of the issuance of such Rights.
9.2 Voluntary Adjustment by the Company. The Company may at
its option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount deemed appropriate by the Board of Directors of the
Company.
9.3 Notice of Adjustment. Whenever the number of Warrant
Shares purchasable upon the exercise of each Warrant or the Exercise Price of
Warrant Shares is adjusted, as herein provided (except pursuant to Section 4.5
hereof), the Company shall cause the Warrant Agent promptly to mail to each
Holder, at the sole expense of the Company by first class mail, postage prepaid,
notice of such adjustment or adjustments and shall deliver to the Warrant Agent
a certificate of a firm of independent public accountants (who may be the
regular accountants employed by the Company) setting forth the number of Warrant
Shares purchasable upon the exercise of each Warrant and the Exercise Price of
Warrant Shares after such adjustment, setting forth a brief statement of the
facts requiring such adjustment and setting forth in reasonable detail the
computations by which such adjustment was made. The Warrant Agent shall be
entitled to rely on such certificate and shall be under no duty or
responsibility with respect to any such certificate, except to exhibit the same,
from time to time, to any Holder requesting an inspection thereof during
reasonable business hours. The Warrant Agent shall not at any time be under any
duty or responsibility to any Holder to determine whether any facts exist which
may require any adjustment of the Exercise Price or the number of Warrant Shares
or other stock or property purchasable on exercise of Warrants, or with respect
to the nature or extent of any such adjustment when made, or with respect to the
method employed in making such adjustment.
9.4 Preservation of Purchase Rights upon Merger or
Consolidation. In case of any consolidation of the Company with or merger of the
Company into another entity, the Company or such successor entity shall execute
and deliver to the Warrant Agent an agreement, which shall be binding on the
Holders, that each Holder shall have the right thereafter upon payment of the
Exercise Price in effect immediately prior to such action (after giving effect
to any applicable adjustments under Section 9.1 hereof) to purchase upon
exercise of each Warrant the kind and amount of shares and other securities and
property (including cash) which such Holder would have owned or have been
- 15 -
entitled to receive after the happening of such consolidation or merger had such
Warrant been exercised immediately prior to such action. The Company shall at
its sole expense mail by first class mail, postage prepaid, to each Holder
notice of the execution of any such agreement. Such agreement shall provide for
adjustments, which shall be substantially identical to the adjustments provided
for in this Section 9. In addition, the Company shall not merge or consolidate
with or into any other entity unless the successor entity (if not the Company)
shall expressly assume, by supplemental agreement reasonably satisfactory in
form and substance to the Warrant Agent in its sole judgment and executed and
delivered to the Warrant Agent, the due and punctual performance and observance
of each and every covenant and condition of this Agreement to be performed and
observed by the Company. The provisions of this Section 9.4 shall similarly
apply to successive consolidations or mergers. The Warrant Agent shall be under
a good faith duty and responsibility to determine the correctness of any
provisions contained in any such agreement relating to the kind or amount of
shares of stock or other securities or property receivable upon exercise of
Warrants or with respect to the method employed and provided therein for any
adjustments and shall be entitled to rely upon the provisions contained in any
such agreement.
9.5 No Adjustment for Dividends. Except as expressly provided
in Section 9.1 hereof, no adjustment in respect of any dividend shall be made
during the term of a Warrant or upon exercise of a Warrant.
9.6 Statement on Warrants. Irrespective of any adjustments in
the Exercise Price or the number or kind of shares purchasable upon the exercise
of the Warrants, Warrants theretofore or thereafter issued may continue to
express the same Exercise Price and number and kind of Warrant Shares as are
stated in the Warrants initially issuable pursuant to this Agreement.
Section 10. Fractional Interests. Neither the Company nor the
Warrant Agent shall be required to issue fractional Warrant Shares on the
exercise of Warrants. If more than one Warrant shall be exercised at the same
time by the same Holder, the number of full Warrant Shares which shall be
issuable upon such exercise shall be computed on the basis of the aggregate
number of Warrants so exercised. If any fraction of a Warrant Share would,
except for the provisions of this Section 10, be issuable on the exercise of any
Warrant, the Company shall pay an amount in cash equal to the closing price for
one share of Common Stock on the date the Warrant Certificate is presented for
exercise (determined in accordance with the second sentence of Section 9.1(d)(i)
hereof), multiplied by such fraction.
Section 11. No Rights as Stockholders; Notices to Holders.
Nothing contained in this Agreement or in any of the Warrants shall be construed
as conferring upon the Holders or their transferees the right to vote or to
receive dividends or to consent or to receive notice as stockholders in respect
of any meeting of stockholders for the election of directors of the Company or
any other matter, or any rights whatsoever as stockholders of the Company.
- 16 -
In case:
(a) the Company shall authorize the issuance
to all holders of shares of Common Stock of rights, options or
warrants to subscribe for or purchase shares of Common Stock
or of any other subscription rights or warrants; or
(b) the Company shall authorize the
distribution to all holders of shares of Common Stock of
securities or assets (other than cash dividends); or
(c) of any consolidation or merger to which
the Company is a party and for which approval of any
stockholders of the Company is required, or of the conveyance
or transfer of a substantial portion of the properties and
assets of the Company for which approval of any stockholders
of the Company is required, or of any reclassification or
change of Common Stock issuable upon exercise of the Warrants
(other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a
subdivision or combination), or a tender offer or exchange
offer by the Company for shares of Common Stock; or
(d) of the voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then the Company shall cause to be filed with the Warrant
Agent and shall cause to be given to each Holder at its
address appearing on the Warrant Register, at least twenty
(20) days prior to the applicable record date hereinafter
specified, or promptly in the case of events for which there
is no record date, by first class mail, postage prepaid, a
written notice stating (i) the date as of which the holders of
record of shares of Common Stock entitled to receive any such
rights, options, warrants or distribution are to be
determined, or (ii) the initial expiration date set forth in
any tender offer or exchange offer for shares of Common Stock,
or (iii) the date on which any such reclassification,
consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding up is expected to become effective or
consummated, as well as the date as of which it is expected
that holders of record of shares of Common Stock shall be
entitled to exchange such shares for securities or other
property, if any, deliverable upon such reclassification,
consolidation, merger, conveyance, transfer, dissolution,
liquidation, or winding up. The failure to give the notice
required by this Section 11 or any defect therein shall not
affect the legality or validity of any distribution, right,
option, warrant, reclassification, consolidation, merger,
conveyance, transfer, dissolution, liquidation, winding up or
action, or the vote upon any of the foregoing.
Section 12. Payments in U.S. Currency. All payments required
to be made hereunder shall be made in lawful money of the United States of
America.
- 17 -
Section 13. Merger or Consolidation or Change of Name of
Warrant Agent. Any corporation into which the Warrant Agent may be merged or
with which it may be consolidated, or any corporation resulting from any merger
or consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the corporation trust business of the Warrant Agent, shall be the
successor to the Warrant Agent hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that
such corporation would be eligible for appointment as a successor Warrant Agent
under the provisions of Section 15 hereof. In case at the time such successor to
the Warrant Agent shall succeed to the agency created by this Agreement, any of
the Warrant Certificates shall have been countersigned but not delivered, any
such successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent and deliver such Warrant Certificates so countersigned;
and in case at that time any of the Warrant Certificates shall not have been
countersigned, any successor to the Warrant Agent may countersign such Warrant
Certificates either in the name of the predecessor Warrant Agent or in the name
of the successor Warrant Agent; and in all such cases such Warrant Certificates
shall be fully valid and effective as provided therein and in this Agreement.
In case at any time the name of the Warrant Agent shall be
changed and at such time any of the Warrant Certificates shall have been
countersigned but not delivered, the Warrant Agent may adopt the
countersignatures under its prior name and deliver such Warrant Certificates so
countersigned; and in case at that time any of the Warrant Certificates shall
not have been countersigned, the Warrant Agent may countersign such Warrant
Certificates either in its prior name or in its changed name; and in all such
cases such Warrant Certificates shall be fully valid and effective as provided
therein and in this Agreement.
Section 14. Appointment of Warrant Agent. The Company hereby
appoints the Warrant Agent to act as agent for the Company hereunder and in
accordance with the terms and conditions hereof, and the Warrant Agent hereby
accepts such appointment.
14.1 Concerning the Warrant Agent. The Warrant Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the Holders, by
their acceptance of Warrant Certificates, shall be bound:
14.2 Correctness of Statements. The statements contained
herein and in the Warrant Certificates shall be taken as statements of the
Company, and the Warrant Agent assumes no responsibility for the correctness of
any of the same except such as describe the Warrant Agent or action taken by it.
The Warrant Agent assumes no responsibility with respect to the distribution of
the Warrant Certificates or Warrants except as herein otherwise provided.
14.3 Breach of Covenants. The Warrant Agent shall not be
responsible for any failure of the Company to comply with any of the covenants
contained in this Agreement or in the Warrant to be complied with by the
Company.
- 18 -
14.4 Performance of Duties. The Warrant Agent may execute and
exercise any of the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents and shall not
be responsible for the misconduct or negligence of any attorney or agent (which
shall not include an employee of the Warrant Agent) appointed with due care.
14.5 Reliance on Counsel. The Warrant Agent may consult at any
time with legal counsel satisfactory to it (who may be counsel for the Company),
and the Warrant Agent shall incur no liability or responsibility to the Company
or to any Holder in respect to any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or the advice of such
counsel.
14.6 Proof of Actions Taken. Whenever in the performance of
its duties under this Agreement the Warrant Agent shall deem it necessary or
desirable that any fact or matter be proved or established by the Company prior
to taking or suffering any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may be deemed
conclusively to be proved and established by a certificate signed by the
Chairman of the Board, the President, a Vice President, the Treasurer or the
Secretary of the Company and delivered to the Warrant Agent; and such
certificate shall be full authorization to the Warrant Agent for any action
taken or suffered in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
14.7 Compensation. The Company agrees to pay the Warrant Agent
reasonable compensation for all services rendered by the Warrant Agent in the
performance of its duties under this Agreement, to reimburse the Warrant Agent
for all reasonable expenses, taxes and governmental charges and other charges of
any kind and nature reasonably incurred by the Warrant Agent in the performance
of its duties under this Agreement (including but not limited to legal fees and
expenses), and to indemnify the Warrant Agent and save it harmless against any
and all liabilities, including judgments, costs and counsel fees, for anything
done or omitted by the Warrant Agent or any of its agents in the performance of
its duties under this Agreement, except as a result of the Warrant Agent's
negligence or willful misconduct as determined in a final judgment of a court of
competent jurisdiction and authority. The Company's obligations under this
Section 14.7 and any claim arising hereunder shall survive the resignation or
removal of the Warrant Agent and the termination or discharge of the Company's
obligations under this Agreement.
14.8 Legal Proceedings. The Warrant Agent shall be under no
obligation to institute any action, suit or legal proceeding or to take any
other action likely to involve expense unless the Company or any one or more
Holders shall furnish the Warrant Agent with reasonable security and indemnity
for any costs and expenses which may be incurred or any liabilities which may
arise, but this provision shall not affect the power of the Warrant Agent to
take such action as the Warrant Agent may consider proper, whether with or
without any such security or indemnity. All rights of action of any Holder under
this Agreement or under any of the Warrants may be enforced by the Warrant Agent
without the possession of any of the Warrant Certificates or the production
thereof at any trial or other proceeding relative thereto, and any such action,
- 19 -
suit or proceeding instituted by the Warrant Agent shall be brought in its name
as Warrant Agent, and any recovery of judgment shall be for the ratable benefit
of the Holders, as their respective rights or interests may appear.
14.9 Other Transactions in Securities of Company. The Warrant
Agent and any stockholder, director, officer or employee of the Warrant Agent
may buy, sell or deal in any of the Warrants or any other securities of the
Company or become pecuniarily interested in any transaction in which the Company
may be interested or contract with or lend money to the Company or otherwise act
as fully and freely as though it were not Warrant Agent under this Agreement.
Nothing herein shall preclude the Warrant Agent from acting in any other
capacity for the Company or for any other legal entity.
14.10 Liability of Warrant Agent. The Warrant Agent shall act
hereunder solely as agent, and its duties shall be determined solely by the
provisions hereof. Notwithstanding any provision in this Agreement to the
contrary, the Warrant Agent shall not be liable for anything which it may do or
refrain from doing in connection with this Agreement except for its own
negligence or bad faith.
14.11 Reliance on Documents. The Warrant Agent will not incur
any liability or responsibility to the Company or to any Holder for any action
taken in reliance on any notice, resolution, waiver, consent, order,
certificate, or other paper, document or instrument reasonably believed by it to
be genuine and to have been signed, sent or presented by the proper party or
parties.
14.12 Validity of Agreement. The Warrant Agent shall not be
under any responsibility in respect of the validity of this Agreement or the
execution and delivery hereof (except the due execution hereof by the Warrant
Agent) or in respect of the validity or execution of any Warrant Certificate
(except its countersignature thereof) or any Warrant; nor shall the Warrant
Agent by any act hereunder be deemed to make any representation or warranty as
to the authorization or reservation of any Warrant Shares (or other securities)
to be issued pursuant to this Agreement or any Warrant, or as to whether any
Warrant Shares (or other securities) will, when issued, be validly issued, fully
paid and nonassessable, or as to the Exercise Price or the number or amount of
Warrant Shares or other securities or any Assets or other property issuable upon
exercise of any Warrant.
14.13 Instructions from Company. The Warrant Agent is hereby
authorized and directed to accept instructions with respect to the performance
of its duties hereunder from the Chairman of the Board, the President, a Vice
President, the Treasurer or the Secretary of the Company, and to apply to such
officers for advice or instructions in connection with its duties, and shall not
be liable for any action taken or suffered to be taken by it in good faith in
accordance with instructions of any such officer or officers.
Section 15. Change of Warrant Agent. The Warrant Agent may
resign and be discharged from its duties under this Agreement by giving to the
Company thirty (30) days' prior notice in writing. The Warrant Agent may be
removed by like notice to the Warrant Agent and the Holders from the Company,
such notice to specify the date when removal shall become effective. If the
- 20 -
Warrant Agent shall resign or be removed or shall otherwise become incapable of
acting, the Company shall appoint a successor to the Warrant Agent. If the
Company shall fail to make such appointment within a period of thirty (30) days
after such removal or notification in writing of such resignation or incapacity
by the resigning or incapacitated Warrant Agent or by any Holder (who shall with
such notice submit his Warrant Certificate or Certificates for inspection by the
Company), then any Holder may apply to any court of competent jurisdiction for
the appointment of a successor to the Warrant Agent. Any successor Warrant
Agent, whether appointed by the Company or such a court, shall be a bank or
trust company, in good standing, incorporated under the laws of the United
States of America or any state thereof and having at the time of its appointment
as Warrant Agent a combined capital and surplus of at least $100,000,000. After
appointment and acceptance of such appointment in writing, the successor Warrant
Agent shall be vested with the same powers, rights, duties and responsibilities
as if it had been originally named as Warrant Agent without further act or deed;
but the former Warrant Agent shall deliver and transfer to the successor Warrant
Agent any property at the time held by it hereunder, and shall execute and
deliver any further assurance, conveyance, act or deed necessary for the
purpose. Failure to file any notice provided for in this Section 15, however, or
any defect therein, shall not affect the legality or validity of the resignation
or removal of the Warrant Agent or the appointment of the successor Warrant
Agent, as the case may be. In the event of such resignation or removal, the
successor Warrant Agent shall mail, by first class mail, postage prepaid, to
each Holder, written notice of such removal or resignation and the name and
address of such successor Warrant Agent.
Section 16. Notices. Any notice pursuant to this Agreement by
the Company or by any Holder to the Warrant Agent, or by the Warrant Agent or by
any Holder to the Company, shall be in writing and shall be delivered in person
or by facsimile transmission, or mailed first class, postage pre-paid, (a) to
the Company, at its offices at 000 Xxxxx 00 Xxxxx, Xxxxxxxx, Xxx Xxxx 00000,
Attention: President, Telecopier No.: (000) 000-0000, or (b) to the Warrant
Agent, at its offices at 000 Xxxxxxxx, Xxxxx X, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Xxxxx Xxxxxxx, Telecopier No.: (000) 000-0000. Each party hereto may
from time to time change the address to which notices to it are to be delivered
or mailed hereunder by notice to the other party.
Any notice mailed pursuant to this Agreement by the Company or
the Warrant Agent to the Holders shall be in writing and shall be mailed first
class, postage prepaid, or otherwise delivered, to such Holders at their
respective addresses in the Warrant Register. The initial address of each Holder
shall be as provided by the Company to the Warrant Agent. Any Holder may change
its address by notice to the Company and the Warrant Agent given in accordance
with this Section 16.
Section 17. Cancellation of Warrants. In the event the Company
shall purchase or otherwise acquire Warrants, the same shall thereupon be
delivered to the Warrant Agent and be canceled by it and retired. The Warrant
Agent shall cancel any Warrant certificate surrendered for exchange,
substitution, transfer or exercise in whole or in part.
- 21 -
Section 18. Supplements and Amendments. The Company and the
Warrant Agent may from time to time supplement or amend this Agreement, the
Warrants and the Warrant Certificates without approval of any Holder, in order
to cure any ambiguity or to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provision herein, or to
comply with the requirements of any national securities exchange or The Nasdaq
National Market System (including but not limited to the deletion of Section
9.2), or to make any other provisions in regard to matters or questions arising
hereunder which the Company and the Warrant Agent may deem necessary or
desirable and which shall not be inconsistent with the provisions of the
Warrants and this Agreement. Any other supplement or amendment to this Agreement
may be made with the approval of the Holders of a majority of the then
outstanding Warrants; provided, however, that any such amendment or supplement
that (i) increases the Exercise Price; (ii) decreases the number of shares of
Common Stock issuable upon exercise of a Warrant; or (iii) shortens the period
during which the Warrants may be exercised, shall require the consent of each
Holder of a Warrant affected thereby.
Section 19. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Warrant Agent shall
bind and inure to the benefit of the Company or the Warrant Agent and shall bind
and inure to the benefit of their respective successors hereunder.
Section 20. Applicable Law. This Agreement and each Warrant
issued hereunder shall be governed by and construed in accordance with the laws
of the State of Delaware without giving effect to the principles of conflict of
laws thereof.
Section 21. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation other than the
Company, the Warrant Agent and the Holders any legal or equitable right, remedy
or claim under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Warrant Agent, their respective successors
and the Holders of the Warrants.
Section 22. Counterparts. This Agreement may be executed in
any number of counterparts; each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
Section 23. Captions. The captions of the Sections and
subsections of this Agreement have been inserted for convenience only and shall
have no substantive effect.
- 22 -
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, all as of the day and year first above written.
XXXXX XXXXXX CORPORATION
By:----------------------------------
Name:
Title:
MARINE MIDLAND BANK
-------------------------------------
as Warrant Agent
By:----------------------------------
Name:
Title:
- 23 -
EXHIBIT A
FORM OF WARRANT CERTIFICATE
THESE WARRANTS AND THE WARRANT SHARES ACQUIRED UPON EXERCISE
OF THE WARRANTS REPRESENTED HEREBY ARE SUBJECT TO RESTRICTIONS PURSUANT TO
ARTICLE IV, SECTION 5 OF THE RESTATED CERTIFICATE OF INCORPORATION OF THE
COMPANY WHICH ARTICLE IS REPRINTED IN ITS ENTIRETY ON THE REVERSE SIDE OF THIS
CERTIFICATE.
No. ________________________ ________________________ Warrants
Warrant Certificate
XXXXX CORONA CORPORATION
This Warrant Certificate certifies that , or registered
assigns, is the registered holder of Warrants (the "Warrants") expiring at 5:00
p.m., New York City time, on (the "Expiration Date"), to purchase Common Stock,
$.001 par value per share (the "Common Stock"), of XXXXX XXXXXX CORPORATION, a
Delaware corporation (the "Company"). The Warrants may be exercised at any time
from 9:00 a.m., New York City time, on to 5:00 p.m., New York City time, on the
Expiration Date. Each Warrant entitles the holder upon exercise to receive from
the Company, if exercised before 5:00 p.m., New York City time, on the
Expiration Date, one fully paid and nonassessable share of Common Stock (a
"Warrant Share") at the Exercise Price (as defined in the Warrant Agreement
referred to on the reverse side hereof), payable in lawful money of the United
States of America, upon surrender of this Warrant Certificate and payment of the
Exercise Price at the office or agency of the Warrant Agent, but only subject to
the conditions set forth herein and in the Warrant Agreement. The Exercise Price
and number of Warrant Shares issuable upon exercise of the Warrants are subject
to adjustment upon the occurrence of certain events as set forth in the Warrant
Agreement.
WARRANTS NOT EXERCISED ON OR BEFORE 5:00 P.M., NEW
YORK CITY TIME, ON , SHALL BECOME VOID.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof, and such further provisions
shall for all purposes have the same effect as though fully set forth at this
place.
This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent, as such term is used in the Warrant
Agreement.
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IN WITNESS WHEREOF, XXXXX CORONA CORPORATION has caused this
Warrant Certificate to be duly executed.
XXXXX XXXXXX CORPORATION
By:_________________________________
Title:
Dated:
____________________________________
Countersigned:
MARINE MIDLAND BANK ,
____________________________________
as Warrant Agent
By:__________________________________
Authorized Signatory
A-2
[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Warrants expiring on the Expiration Date entitling
the holder on exercise to receive shares of Common Stock of the Company and are
issued or to be issued pursuant to a Warrant Agreement dated as of , 1996 (the
"Warrant Agreement"), duly executed and delivered by the Company to Marine
Midland Bank, as Warrant Agent (the "Warrant Agent"), which Warrant Agreement is
hereby incorporated by reference in and made a part of this instrument and is
hereby referred to for a description of the rights, limitation of rights,
obligations, duties and immunities thereunder of the Warrant Agent, the Company
and the holders (the words "holders" or "holder" meaning the registered holders
or registered holder) of the Warrants. A copy of the Warrant Agreement may be
obtained by the holder hereof upon written request to the Company. By accepting
initial delivery, transfer or exchange of this Warrant, the duly registered
holder shall be deemed to have agreed to the terms of the Warrant Agreement as
it may be in effect from time to time, including any amendments or supplements
duly adopted in accordance therewith.
The holder of Warrants evidenced by this Warrant Certificate
may exercise them by surrendering this Warrant Certificate, with the form of
election to purchase set forth hereon properly completed and executed, together
with payment of the Exercise Price in the manner described below at the office
of the Warrant Agent. In the event that upon any exercise of Warrants evidenced
hereby the number of Warrants exercised shall be less than the total number of
Warrants evidenced hereby, there shall be issued to the holder hereof or its
assignee a new Warrant Certificate evidencing the number of Warrants not
exercised.
Payment of the Exercise Price may be made in cash by wire
transfer to the Warrant Agent for the account of the Company or by certified or
official bank check or checks to the order of the Company or by any combination
thereof.
The Warrant Agreement provides that upon the occurrence of
certain events the number of shares of Common Stock issuable upon the exercise
of each Warrant, and the Exercise Price of each Warrant, may, subject to certain
conditions, be adjusted. No fractions of a share of Common Stock will be issued
upon the exercise of any Warrant, but the Company shall pay the cash value
thereof determined as provided in the Warrant Agreement.
Warrant Certificates, when surrendered at the office of the
Warrant Agent by the registered holder thereof in person or by legal
representative or attorney duly authorized in writing, may be exchanged, in the
manner and subject to the limitations provided in the Warrant Agreement, but
without payment of any service charge, for another Warrant Certificate or
Warrant Certificates of like tenor evidencing in the aggregate a like number of
Warrants.
Upon due presentation for registration of transfer of this
Warrant Certificate at the office of the Warrant Agent, a new Warrant
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Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
exchange for this Warrant Certificate, subject to the limitations provided in
the Warrant Agreement, without charge except for any tax or other governmental
charge imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the
registered holder(s) hereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and neither the Company nor the
Warrant Agent shall be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a stockholder of the Company.
Until June 30, 1999, (a) any attempted sale, transfer,
assignment, conveyance, grant, pledge, gift or other disposition of any share or
shares of stock of the Company (within the meaning of Section 382 of the
Internal Revenue Code of 1986, as amended (the "Tax Code")) or any option or
right to purchase such stock, as defined in the Treasury Regulations under
Section 382 of the Tax Code, to any person or entity (or group of persons or
entities acting in concert), or any attempted exercise of the aforementioned
option or right to purchase such stock by any person or entity (or group of
persons or entities acting in concert), who either directly or indirectly owns
or would be treated as owning, or whose shares are or would be attributed to any
person or entity who directly or indirectly owns or would be treated as owning,
in either case prior to the purported transfer or exercise and after giving
effect to the applicable attribution rules of the Tax Code and applicable
Treasury Regulations, 5-percent or more of the value of the outstanding stock of
the Company or otherwise treated as a 5-percent (5%) shareholder (within the
meaning of Section 382 of the Tax Code), regardless of the percent or the value
of the stock owned, shall be void ab initio insofar as it purports to transfer
ownership or rights in respect of such stock to the purported transferee and (b)
any attempted sale, transfer, assignment, conveyance, grant, gift, pledge or
other disposition of any share of stock of the Company (within the meaning of
Section 382 of the Tax Code) or any option or right to purchase such stock, as
defined in the Treasury Regulations under Section 382 of the Tax Code, to any
person or entity (or group of persons or entities acting in concert) or any
attempted exercise of the aforementioned option or right to purchase such stock
by any person or entity (or group of persons or entities acting in concert) not
described in clause (a) who directly or indirectly would own, or whose shares
would be attributed to any person or entity who directly or indirectly would
own, in each case as a result of the purported transfer or exercise and after
giving effect to the applicable attribution rules of the Tax Code and applicable
Treasury Regulations, 5-percent (5%) or more of the value of any of the stock of
the Company (or otherwise treated as a 5-percent (5%) shareholder within the
meaning of Section 382 of the Tax Code), shall, as to that number of shares
causing such person or entity to be a 5-percent (5%) shareholder, be void ab
initio insofar as it purports to transfer ownership or rights in respect of such
stock to the purported transferee; provided, however, if the Company either does
not qualify under Section 382(l)(5) of the Tax Code or chooses to make an
election under Section 382(l)(5)(H) of the Tax Code (or the applicable provision
then in effect) not to have the provisions of Section 382(l)(5) of the Tax Code
apply, the restrictions described above in clauses (a) and (b) shall be deemed
to lapse and shall have no further force or effect as of the earlier of the
A-4
date the Company is aware that it does not qualify under Section 382(l)(5) of
the Tax Code and the date of such election; provided further, however, that
neither of the restrictions described above in the foregoing clauses (a) or (b)
shall prevent a valid transfer or exercise if (i) the transferor or exercisor,
as the case may be, obtains the written approval of the Board of Directors of
the Company and provides the Company with an opinion of counsel satisfactory to
the Company that, assuming, as of the date of such opinion, the full exercise of
all warrants issued by, and any options granted pursuant to any stock option
plan of, the Company, the transfer or exercise shall not result in the
application of any tax law limitation on the use of the Company's loss
carryforwards or other tax attributes or (ii) a tender offer, within the meaning
of the Securities Exchange Act of 1934, as amended, and pursuant to the rules
and regulations thereof, is made by a bona fide third party purchaser to
purchase at least sixty-six and two thirds percent (662/3%) of the issued and
outstanding common stock of the Company and the offeror (A) agrees to effect,
within ninety (90) days of the consummation of the tender offer, a back-end
merger in which all non-tendering shareholders would receive the same
consideration as paid in the tender offer, and (B) has received the tender of
sufficient shares to effect such merger. Without limiting or restricting in any
manner the effectiveness of the foregoing provisions, the Company may rely and
shall be protected in relying on its shareholder lists and stock transfer
records for all purposes relating to such notices, voting, payment of dividend
or other communication or distributions to its shareholders.
In the absence of special approval by the Board of Directors,
a purported transfer or exercise of shares in excess of the shares that can be
transferred or exercised pursuant to this Section 5 (the "Prohibited Shares") to
the purported acquiror (the "Purported Acquiror) is not effective to transfer
ownership of such Prohibited Shares. On demand by the Company, which demand must
be made within thirty (30) days of the time the Company learns of the transfer
or exercise of the Prohibited Shares, a Purported Acquiror must transfer any
certificate or other evidence of ownership of the Prohibited Shares within the
Purported Acquiror's possession or control, together with any dividends or other
distributions ("Distributions") that were received by the Purported Acquiror
from the Company with respect to the Prohibited Shares, to an agent designated
by the Company (the "Agent"). The Agent will sell the Prohibited Shares in an
arm's length transaction (over a stock exchange, if possible), and the Purported
Acquiror will receive an amount of sales proceeds not in excess of the price
paid or consideration surrendered by the Purported Acquiror for the Prohibited
Shares (or the fair market value of the Prohibited Shares at the time of any
attempted transfer to the Purported Acquiror by gift, inheritance, or a similar
transfer). If the Purported Acquiror has sold the Prohibited Shares prior to
receiving the Company's demand to surrender the Prohibited Shares to the Agent,
the Purported Acquiror shall be deemed to have sold the Prohibited Shares as an
Agent for the initial transferor, or, in the case where the Prohibited Shares
are acquired pursuant to the exercise of an option or right to purchase stock of
the Company, for the Company, and shall be required to transfer to the Agent any
proceeds of such sale and any Distributions.
In the case of an attempted exercise of an option or a right
to purchase stock of the Company, the Agent will pay to the Company any sales
proceeds in excess of those due to the Purported Acquiror, together with any
distributions received by the Agent. In all other cases, if the initial
transferor can be identified, the Agent will pay to it any sales proceeds in
A-5
excess of those due to the Purported Acquiror, together with any distributions
received by the Agent. If the initial transferor cannot be identified within
ninety (90) days of receipt of such sales proceeds, if any, the Agent may pay
any such amounts to a charity of its choosing. In no event shall amounts paid to
the Agent inure to the benefit of the Company (except as set forth in the first
sentence of this paragraph) or the Agent, but such amounts may be used to cover
expenses of the Agent in attempting to identify the initial transferor.
If the Purported Acquiror fails to surrender the Prohibited
Shares within the next thirty (30) business days from the demand by the Company,
then the Company may institute legal proceedings to compel the surrender. The
Company shall be entitled to damages, including reasonable attorneys' fees and
costs, from the Purported Acquiror, on account of such purported transfer.
A-6
PURCHASE FORM
The undersigned hereby irrevocably elects to exercise this
Warrant, according to the terms and conditions hereof, to the extent of
purchasing shares of Common Stock and hereby makes payment of $ in payment of
the exercise price thereof. If the number of shares shall not be all of the
shares purchasable under this Warrant, a new Warrant Certificate for the balance
remaining shall be issued in the name of the undersigned or its assignee as
indicated on the Assignment Form.
Dated: ____________________
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name:
________________________________________________________________________________
(please typewrite or print in block letters)
Address:
________________________________________________________________________________
Signature:
________________________________________________________________________________
Note: The signature must conform in all respects to name of holder as
specified on the face of this Warrant Certificate
Signature Guaranteed:
A-7
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
Name:---------------------------------------------------------------------------
(please typewrite or print in block letters)
Address:------------------------------------------------------------------------
its right to purchase ----- shares of Common Stock represented by this Warrant
and does hereby irrevocably constitute and appoint ---------Attorney, to
transfer the same on the books of the Company, with full power of substitution
in the premises.
Dated:----------------------------------
----------------------------------------- Signature:----------------------
Social Security or other number of holder Note: The signature must
identifying conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate
Signature Guaranteed:
A-8
