EXHIBIT 1.2
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WARRANT AGREEMENT
AMONG
U. S. CONCRETE, INC.
AND
XXXXX & XXXXXXXXXXXX, INC.
AND
XXXXXXX XXXXXX XXXXX INC.
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DATED AS OF MAY , 1999
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Warrants to Purchase 200,000 Common Shares
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TABLE OF CONTENTS
PAGE
AGREEMENT....................................................................1
1. DEFINITIONS............................................................1
2. WARRANT CERTIFICATES...................................................5
2.1 ISSUANCE OF WARRANT..............................................5
2.2 FORM, DENOMINATION AND DATE OF WARRANTS..........................5
2.3 EXECUTION AND DELIVERY OF WARRANT CERTIFICATES...................5
2.4 TRANSFER AND EXCHANGE; RESTRICTIONS ON TRANSFER; LEGEND..........6
3. EXERCISE AND EXPIRATION OF WARRANTS....................................8
3.1 RIGHT TO ACQUIRE WARRANT SHARES UPON EXERCISE....................8
3.2 EXERCISE AND EXPIRATION OF WARRANTS..............................8
(a) EXERCISE OF WARRANTS.......................................8
(b) EXPIRATION OF WARRANTS.....................................8
(c) METHOD OF EXERCISE.........................................8
(d) PARTIAL EXERCISE...........................................9
(e) ISSUANCE OF WARRANT SHARES.................................9
(f) TIME OF EXERCISE...........................................9
3.3 PAYMENT OF TAXES................................................10
3.4 SURRENDER OF CERTIFICATES.......................................10
3.5 SHARES ISSUABLE.................................................10
4. DISSOLUTION, LIQUIDATION OR WINDING UP................................10
5. ADJUSTMENTS...........................................................11
5.1 ADJUSTMENTS.....................................................11
(a) STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS............11
(b) CERTAIN OTHER DIVIDENDS AND DISTRIBUTIONS.................12
(c) RECLASSIFICATIONS.........................................12
(d) DISTRIBUTION OF WARRANTS OR OTHER RIGHTS TO HOLDERS OF
COMMON SHARES.............................................13
(e) SUPERSEDING ADJUSTMENT OF NUMBER OF WARRANT SHARES INTO
WHICH EACH WARRANT IS EXERCISABLE.........................13
(f) OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER THIS
SECTION...................................................13
(g) WARRANT PRICE ADJUSTMENT..................................14
(h) MERGER, CONSOLIDATION OR COMBINATION......................15
(i) COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS.................15
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(j) OPTIONAL TAX ADJUSTMENT...................................15
(k) WARRANTS DEEMED EXERCISABLE...............................15
(l) LIMITATIONS ON CERTAIN NON-STOCK DIVIDENDS................15
5.2 NOTICE OF ADJUSTMENT............................................16
5.3 STATEMENT ON WARRANT CERTIFICATES...............................16
5.4 FRACTIONAL INTEREST.............................................16
6. LOSS OR MUTILATION....................................................16
7. RESERVATION AND AUTHORIZATION OF WARRANT SHARES.......................17
8. WARRANT TRANSFER BOOKS................................................17
9. WARRANT HOLDERS.......................................................18
9.1 VOTING OR DIVIDEND RIGHTS.......................................18
9.2 RIGHTS OF ACTION................................................19
9.3 TREATMENT OF HOLDERS OF WARRANT CERTIFICATES....................19
9.4 COMMUNICATIONS TO HOLDERS.......................................19
10. NOTICES...............................................................19
10.1 NOTICES GENERALLY...............................................19
10.2 REQUIRED NOTICES TO HOLDERS.....................................21
11. APPLICABLE LAW........................................................21
12. PERSONS BENEFITING....................................................22
13. COUNTERPARTS..........................................................22
14. AMENDMENTS............................................................22
15. INSPECTION............................................................22
16. SUCCESSOR TO THE COMPANY..............................................22
17. ENTIRE AGREEMENT......................................................23
18. HEADINGS..............................................................23
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EXHIBITS
A. Form of Warrant Certificate..........................................A-1
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WARRANT AGREEMENT
This WARRANT AGREEMENT, dated as of May , 1999, is entered into among U.
S. CONCRETE, INC., a Delaware corporation (the "Company"), XXXXX & XXXXXXXXXXXX
INC., a corporation ("S&S") and XXXXXXX XXXXXX XXXXX INC., a corporation
("SMM").
R E C I T A L S:
A. This Agreement is entered into in connection with a letter agreement,
dated ___________________, 1999 between the Company, S&S and SMM (the
"Engagement Agreement").
B. Pursuant to the Engagement Agreement and in connection with the
Company's proposed initial public offering of its Common Shares (as defined
below), the Company proposes to issue to S&S and SMM an aggregate of 200,000
Warrants, as hereinafter described, each to purchase from time to time at the
Warrant Price (as defined below) one Common Share (as defined below) of the
Company on and after the Issue Date (as defined below) and on or prior to the
Expiration Date (as defined below).
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
1. DEFINITIONS
"ADDITIONAL COMMON SHARES" shall mean all Common Shares issued or issuable
by the Company after the date of this Agreement, other than the Warrant Shares.
"AFFILIATE" shall mean, as to any Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control of such Person. For purposes of this definition, "control" when used
with respect to any Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"AGREEMENT" shall mean this Warrant Agreement, as the same may be amended,
modified or supplemented from time to time.
"BUSINESS DAY" shall mean a day which in New York, New York is neither a
legal holiday nor a day on which banking institutions are authorized by law or
regulation to close.
"CAPITAL STOCK" of any Person shall mean any and all shares, interests,
participations or other equivalents (however designated) of such Person's
capital stock, and any warrants, options or similar rights to acquire such
capital stock.
"COMMISSION" shall mean the U.S. Securities and Exchange Commission.
"COMMON SHARES" shall mean (i) the common stock, par value $.001 per
share, of the Company, as constituted on the original issuance of the Warrants,
(ii) any Capital Stock into which such Common Shares may thereafter be changed
and (iii) except as provided in Section 5.1(c), any share of Capital Stock of
the Company of any other class issued to holders of Common Shares upon any
reclassification thereof.
"CORPORATE OFFICE" shall mean the executive offices of the Company located
at 0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 or such other place
as the Company shall locate its executive offices.
"CURRENT MARKET PRICE" shall mean, with respect to any security on any
date the average of the daily Market Price of such security for each Business
Day during the period commencing thirty (30) Business Days before such date and
ending on the date one Business Day prior to such date provided, however, that
if (i) the Current Market Price per share of a security is determined during a
period following the Company's announcement of (A) a dividend or distribution on
such a security payable in shares of such a security or securities convertible
into shares of such a security, or (B) any subdivision, combination or
reclassification of such security and (ii) prior to the expiration of such
thirty (30) Business Day period before such date (or, if applicable, such lesser
number of Business Days before such date for which daily Market Prices are
available) the ex-dividend date for such dividend or distribution or the record
date for such subdivision, combination or reclassification occurs, then, in each
such case, the Current Market Price shall be properly adjusted to take into
account ex-dividend trading.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"EXPIRATION DATE" shall mean the third anniversary of the Issue Date or
such earlier date as determined in accordance with Section 4.
"HOLDER" or "WARRANTHOLDER" shall mean any Person in whose name at the
time any Warrant Certificate is registered upon the Warrant Register.
"INDEPENDENT" shall mean a nationally recognized investment banking firm
or Person (as the case may be) (i) that does not then have, and for the three
years immediately preceding such time has not had (and, in the case of a
nationally recognized investment banking firm, whose directors, officers,
employees and Affiliates do not then have, and for the three years immediately
preceding such time have not had) a direct or indirect interest in the Company
or any of its Subsidiaries or Affiliates or any successor to any of them and
(ii) that is not then, and for the three years immediately preceding such time
was not (and, in the case of a nationally recognized investment banking firm,
whose directors, officers, employees or Affiliates are not then, and for the
three years immediately preceding such time were not) an employee, consultant,
advisor, director, officer or
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Affiliate (it being understood that the term "Independent" when applied to a
director of the Company, means a non-employee director of the Company whose only
significant relationship with the Company during the relevant period has been as
a director of the Company) of the Company, any of its Subsidiaries or Affiliates
or any successor to any of them.
"INDEPENDENT FINANCIAL EXPERT" shall mean an Independent nationally
recognized investment banking firm with assets in excess of $1.0 billion
selected by a majority of the members of the Board of Directors (and by a
majority of the Independent members of the board, if any) of the Company.
"ISSUE DATE" shall mean the date on which Common Shares (as herein
defined) are delivered to underwriters and payment is made therefor pursuant to
the Company's initial public offering of Common Shares.
"MARKET PRICE" at any date shall be deemed to be the last reported sale
price, or, in case no such reported sale takes place on such day, the average of
the last reported sale prices for the last three trading days, in either case as
officially reported by the principal securities exchange on which the securities
are listed or admitted to trading or by the NNM, or, if the securities are not
listed or admitted to trading on any national securities exchange or quoted by
NNM, the average closing bid price as furnished by the NASD through NNM or
similar organization if NNM is no longer reporting such information, or if the
securities are not quoted on NNM, as determined in good faith by resolution of
the Board of Directors of the Company.
"NASD" shall mean National Association of Securities Dealers, Inc.
"NNM" shall mean Nasdaq National Market.
"NON-STOCK DIVIDEND" shall mean any payment by the Company to all holders
of outstanding Common Shares of any dividend, or any other distribution by the
Company to such holders, of any shares of Capital Stock of the Company,
evidences of indebtedness of the Company, cash or other assets (including
rights, warrants or other securities (of the Company or any other Person)),
other than any dividend or distribution (i) upon a merger or consolidation or
sale to which Section 5.1(h) applies, (ii) of any Common Shares referred to in
Section 5.1(a) or (iii) of cash not in liquidation of the Company.
"NON-SURVIVING COMBINATION" shall mean any merger, consolidation or other
business combination by the Company with one or more other entities in a
transaction in which the Company is not the surviving entity or becomes a wholly
owned subsidiary of another entity.
"OUTSTANDING" shall mean, as of the time of determination, when used with
respect of any Warrants, all Warrants originally issued under this Agreement
except (i) Warrants that have been exercised pursuant to Section 3.2(a), (ii)
Warrants that have expired pursuant to Sections 3.2(b), 4 or 6 and (iii)
Warrants that have otherwise been acquired by the Company; PROVIDED, HOWEVER,
that in determining whether the Holders of the requisite amount of the
outstanding Warrants have given
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any request, demand, authorization, direction, notice, consent or waiver under
the provisions of this Agreement, Warrants owned by the Company or any
Subsidiary or Affiliate of the Company or any Person that is at such time a
party to a merger or acquisition agreement with the Company shall be disregarded
and deemed not to be outstanding.
"PERSON" shall mean any individual, corporation (including a business
trust), partnership, joint venture, association, joint-stock company, trust,
estate, limited liability company, unincorporated association, unincorporated
organization, government or agency or political subdivision thereof or any other
entity.
"RECIPIENT" shall have the meaning given such term in Section 3.2(e).
"REGISTRATION STATEMENT" shall mean the registration statement under the
Securities Act relating to the Company's initial public offering of Common
Shares.
"RESTRICTED WARRANT LEGEND" shall mean the legend set forth in Section
2.4(b).
"RULE 144" shall mean Rule 144 promulgated under the Securities Act.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person or a combination
thereof.
"WARRANT CERTIFICATES" shall mean those certain warrant certificates
evidencing the Warrants, substantially in the form of Exhibit A attached hereto.
"WARRANT PRICE" shall mean the exercise price per Warrant Share, initially
set at $ (the initial public offering price per share of the Common Shares
issued in the Company's initial public offering), subject to adjustment as
provided in Section 5.1(g).
"WARRANT REGISTER" shall have the meaning given such term in Section 8.
"WARRANT SHARES" shall mean the Common Shares issuable upon exercise of
the Warrants, the number and nature of which are subject to adjustment from time
to time in accordance with Section 5.
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"WARRANTS" shall mean those warrants issued hereunder to purchase
initially up to an aggregate of 200,000 Warrant Shares at the Warrant Price,
subject to adjustment pursuant to Section 5.
2. WARRANT CERTIFICATES
2.1 ISSUANCE OF WARRANTS. On the Issue Date the Company shall grant
100,000 Warrants to S&S and 100,000 Warrants to SMM. The Company shall issue to
S&S and SMM Warrant Certificates evidencing such Warrants. Each Warrant
Certificate issued pursuant to this Section 2.1 shall evidence the number of
Warrants specified therein and each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and in the Warrant
Certificate, to purchase one Warrant Share, subject to adjustment as provided in
Section 5.
2.2 FORM, DENOMINATION AND DATE OF WARRANTS.
(a) Warrant Certificates shall be in registered form in
substantially the form of Exhibit A hereto. The Warrants shall be numbered,
lettered or otherwise distinguished in such manner as the officers of the
Company executing the same may determine. Each Warrant shall be dated the date
of its execution. Any of the Warrant Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, as may be required to
comply with any law or with any rules or regulations pursuant thereto, or with
the rules of any securities market in which the Warrants or Common Shares are
admitted to trading, or to the extent not inconsistent with the provisions of
this Agreement, to conform to general usage. All Warrants shall be otherwise
substantially identical except as to denomination and as provided herein.
(b) Each Warrant Certificate issued pursuant to this Agreement will
bear the Restricted Warrant Legend unless removed in accordance with Section
2.4.
2.3 EXECUTION AND DELIVERY OF WARRANT CERTIFICATES.
(a) Warrant Certificates evidencing the Warrants which may be
delivered under this Agreement are limited to Warrant Certificates evidencing
200,000 Warrants, except for Warrant Certificates delivered pursuant to Sections
2.4, 3.2(d), 6 and 8 upon registration of transfer of, or in exchange for, or in
lieu of, one or more previously issued Warrant Certificates and as may be
necessary to reflect the adjustments required by Section 5.
(b) At any time and from time to time on or after the date of this
Agreement, Warrant Certificates evidencing the Warrants may be executed and
delivered by the Company for issuance upon transfer of Warrants pursuant to the
provisions of Section 2.4.
(c) The Warrant Certificates shall be executed in the corporate name
and on behalf of the Company by the Chairman (or any Co-Chairman) of the Board,
the Chief Executive
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Officer, the President or any one of the Vice Presidents of the Company under
corporate seal reproduced thereon and attested to by the Secretary or one of the
Assistant Secretaries of the Company, either manually or by facsimile signature
printed thereon. In case any officer of the Company whose signature shall have
been placed upon any of the Warrant Certificates shall cease to be such officer
of the Company before delivery thereof, such Warrant Certificates may,
nevertheless, be issued and delivered with the same force and effect as though
such person had not ceased to be such officer of the Company, and any Warrant
Certificate may be signed on behalf of the Company by such person as, at the
actual date of the execution of such Warrant Certificate, shall be a proper
officer of the Company, although at the date of the execution of this Agreement
any such person was not such an officer.
2.4 TRANSFER AND EXCHANGE; RESTRICTIONS ON TRANSFER; LEGEND.
(a) The Holder of a Warrant Certificate, by its acceptance thereof,
covenants and agrees that the Warrants are being acquired as an investment and
not with a view to the distribution thereof, and that, notwithstanding anything
in this Agreement to the contrary, the Warrants may not be sold, transferred,
assigned, hypothecated or otherwise disposed of, in whole or in part, for a
period of one year from the effective date of the Registration Statement (except
by operation of law or by reason of reorganization of the Company). However,
during such restricted period the Warrants may be transferred to any member of
the NASD participating in the Company's initial public offering (and to their
successors) and to the bona fide officers or partners thereof (and pursuant to
any such individual's last will and testament or the laws of descent and
distribution).
(b) Except as provided in Section 2.4(d), each Warrant Certificate
and each certificate representing Warrant Shares shall bear the following legend
(the "Restricted Warrant Legend"):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
THE ISSUER THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND
SUCH LAWS IS AVAILABLE WITH RESPECT TO THAT OFFER AND SHARE.
THE WARRANT REPRESENTED BY THIS CERTIFICATE AND THE
OTHER SECURITIES ISSUABLE UPON EXERCISE THEREOF ARE
SUBJECT TO THE CONDITIONS SPECIFIED IN THE WARRANT
AGREEMENT, DATED MAY _________, 1999, AMONG THE COMPANY,
XXXXX & XXXXXXXXXXXX, INC. AND XXXXXXX XXXXXX XXXXX
INC. THE TRANSFER OR EXCHANGE OF THE WARRANT
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REPRESENTED BY THIS CERTIFICATE AND OTHER SECURITIES ISSUABLE UPON
EXERCISE THEREOF IS RESTRICTED IN ACCORDANCE WITH THE WARRANT
AGREEMENT REFERRED TO HEREIN. A COPY OF THE WARRANT AGREEMENT IS ON
FILE AT THE OFFICES OF U.S. CONCRETE, INC. THE HOLDER OF THIS
CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND
BY THE PROVISIONS OF THE WARRANT AGREEMENT.
(c) If a Holder of a Warrant wishes at any time to transfer such
Warrant to a Person who wishes to take delivery thereof, such Holder may,
subject to the restrictions on transfer set forth herein, cause the exchange of
such Warrant for one or more Warrants exercisable for the same aggregate number
of Warrant Shares. Upon receipt by the Company at its Corporate Office of (1)
such Warrant, duly endorsed as provided herein, (2) instructions from such
Holder directing the Company to execute and deliver one or more Warrants
exercisable for the same aggregate number of Warrant Shares as the Warrant to be
exchanged, such instructions to contain the name or names of the designated
transferee or transferees, the authorized denomination or denominations of the
Warrants to be so issued and appropriate delivery instructions, and (3) if
required pursuant to Section 2.4(d), an opinion of counsel to the transferor of
such Warrant, reasonably satisfactory to the Company, to the effect that the
transfer of such Warrant has been registered under the Securities Act or is
exempt from registration thereunder pursuant to an applicable exemption
therefrom, then the Company shall cancel or cause to be canceled such Warrant
and, concurrently therewith, the Company shall execute and deliver, one or more
Warrants to the effect set forth therein, in accordance with the instructions
referred to above.
(d) If Warrants or Warrant Shares are issued upon the transfer,
exchange or replacement of Warrants or Warrant Shares bearing the Restricted
Warrant Legend, or if a request is made to remove such Restricted Warrant
Legend, the Warrants or Warrant Shares so issued shall bear the Restricted
Warrant Legend, or the Restricted Warrant Legend shall not be removed, as the
case may be, unless there is delivered to the Company satisfactory evidence,
which may include an opinion of counsel as may be reasonably required by the
Company to the effect that neither the Restricted Warrant Legend nor the
restrictions on transfer set forth therein are required to ensure that transfers
thereof comply with the provisions of the Securities Act or, with respect to
Warrants or Warrant Shares, that such Warrants or Warrant Shares are not
"restricted" within the meaning of Rule 144 under the Securities Act. Upon
provision of such satisfactory evidence the Company shall execute and deliver
Warrant Certificates that do not bear the Restricted Warrant Legend.
(e) No service charge shall be made to a Warrantholder for any
registration of transfer or exchange; PROVIDED, HOWEVER, that the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Warrant Certificates.
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3. EXERCISE AND EXPIRATION OF WARRANTS
3.1 RIGHT TO ACQUIRE WARRANT SHARES UPON EXERCISE.
Each Warrant Certificate shall entitle the Holder thereof, subject to the
provisions thereof and of this Agreement, to acquire from the Company, for each
Warrant evidenced thereby, one Warrant Share at the Warrant Price, subject to
adjustment as provided in Section 5.1. The Warrants are exercisable at any time
on and after the first anniversary of the Issue Date and on or prior to the
Expiration Date.
3.2 EXERCISE AND EXPIRATION OF WARRANTS.
(a) EXERCISE OF WARRANTS. Subject to the terms and conditions set
forth herein, including, without limitation, the exercise procedure described in
Section 3.2(c), a Holder of a Warrant Certificate may exercise all or any whole
number of the Warrants evidenced thereby, on any Business Day after the first
anniversary of the Issue Date until 5:00 p.m., Houston, Texas time, on the
Expiration Date for the Warrant Shares purchasable thereunder.
(b) EXPIRATION OF WARRANTS. The Warrants shall terminate and become
void as of 5:00 p.m., Houston, Texas time, on the Expiration Date.
(c) METHOD OF EXERCISE. The Holder may exercise all or any whole
number of the Warrants by either of the following methods:
(i) The Holder may deliver to the Company at the Corporate
Office (A) a written notice of such Holder's election to exercise
Warrants, duly executed by such Holder in the form set forth on the
reverse of, or attached to, such Warrant Certificate, which notice
shall specify the number of Warrant Shares to be purchased, (B) the
Warrant Certificate evidencing such Warrants and (C) a sum equal to
the aggregate Warrant Price for the Warrant Shares into which such
Warrants are being exercised, which sum shall be paid in any
combination elected by such Holder of (x) a certified or official
bank check payable to the order of the Company and delivered to the
Company at the Corporate Office, or (y) wire transfers in
immediately available funds to the account of the Company at such
banking institution as the Company shall have given notice to the
Holders in accordance with Section 10.1(b); or
(ii) The Holder may also exercise all or any of the Warrants
in a "cashless" or "net-issue" exercise by delivering to the Company
at the Corporate Office (A) a written notice of such Holder's
election to exercise Warrants, duly executed by such Holder in the
form set forth on the reverse of, or attached to, such Warrant
Certificate, which notice shall specify the number of Warrant Shares
to be delivered to such Holder and the number of Warrant Shares with
respect to which
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such Warrants are being surrendered in payment of the aggregate
Warrant Price for the Warrant Shares to be delivered to the Holder,
and (B) the Warrant Certificate evidencing such Warrants. For
purposes of this subparagraph (ii), each Warrant Share as to which
such Warrants are surrendered in payment of the aggregate Warrant
Price will be attributed a value equal to (x) the Market Price per
share of Common Shares MINUS (y) the then-current Warrant Price.
Solely for the purpose of this paragraph, the Market Price shall be
calculated as the average of the Market Prices for each of the five
trading days preceding the date the notice of exercise is delivered
to the Company.
(d) PARTIAL EXERCISE. If fewer than all the Warrants represented by
a Warrant Certificate are exercised or surrendered pursuant to the provisions of
Section 3.2(c)(ii), such Warrant Certificate shall be surrendered and a new
Warrant Certificate in the same form and for the number of Warrants which were
not exercised or surrendered shall be executed by the Company. Subject to the
restrictions on transfer herein, the Company shall issue and deliver the new
Warrant Certificate to the Person or Persons as may be directed in writing by
the exercising Holder.
(e) ISSUANCE OF WARRANT SHARES. Upon surrender of a Warrant
Certificate evidencing Warrants in conformity with the foregoing provisions and
payment of the Warrant Price in respect of the exercise of one or more Warrants
evidenced thereby, the Company shall within five Business Days after the Company
receives such notice of exercise and payment, execute or cause to be executed
and deliver or cause to be delivered to the Recipient (as defined below) a
certificate or certificates representing the aggregate number of Warrant Shares
issuable upon such exercise (based upon the aggregate number of Warrants so
exercised), determined in accordance with Section 3.5, together with an amount
in cash in lieu of any fractional share(s) determined in accordance with Section
5.4. The certificate or certificates so delivered shall be, to the extent
possible, in such denomination or denominations as such Holder shall request in
such notice of exercise and shall be registered or otherwise placed in the name
of, and delivered to, the Holder or, subject to Section 2.4 and Section 3.3,
such other Person as shall be designated by the Holder in such notice (the
Holder or such other Person being referred to herein as the "Recipient").
(f) TIME OF EXERCISE. A Warrant shall be deemed to have been
exercised immediately prior to the close of business on the date on which all
requirements set forth in Section 3.2(c) applicable to such exercise have been
satisfied. Subject to Section 5.1(f)(iv), certificate(s) evidencing the Warrant
Shares issued upon the exercise of such Warrant shall be deemed to have been
issued and, for all purposes of this Agreement, the Recipient shall, as between
such Person and the Company, be deemed to be and entitled to all rights of the
holder of record of such Warrant Shares as of such time.
3.3 PAYMENT OF TAXES.
The Company will pay all documentary stamp taxes, if any, attributable to
the initial issuance of Warrants and the Warrant Shares issuable upon exercise
of the Warrants; provided, however, that
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Company shall not be required to pay any tax or other charge imposed in respect
of (i) any transfer (including any transfer effected pursuant to the provisions
of Section 3.2(d) or (e)) or exchange of any Warrant Certificates or any
certificates for Warrant Shares or (ii) payment of cash to any Recipient other
than the Holder of the Warrant Certificate surrendered upon the exercise of a
Warrant, and in case of such transfer, exchange or payment, the Company shall
not be required to issue or deliver any certificate or pay any cash until (a)
such tax or charge has been paid or an amount sufficient for the payment thereof
has been delivered to the Company or (b) it has been established to the
Company's satisfaction that any such tax or other charge that is or may become
due has been paid.
3.4 SURRENDER OF CERTIFICATES.
Any Warrant Certificate surrendered for exercise shall be promptly
canceled by the Company and shall not be reissued.
3.5 SHARES ISSUABLE.
The number of Warrant Shares "issuable upon exercise" of Warrants at any
time shall be the number of Warrant Shares into which such Warrants are then
exercisable. The number of Warrant Shares "into which each Warrant is
exercisable" initially shall be one share, subject to adjustment as provided in
Section 5.1.
4. DISSOLUTION, LIQUIDATION OR WINDING UP
If, on or prior to the Expiration Date, the Company shall effect or
otherwise be subject to a voluntary or involuntary dissolution, liquidation or
winding up of the affairs of the Company, each Warrantholder shall receive the
securities, money or other property which such Warrantholder would have been
entitled to receive had such Warrantholder been the holder of record of the
Warrant Shares into which the Warrants were exercisable immediately prior to
such dissolution, liquidation or winding up (net of the then applicable Warrant
Price), and the rights to exercise such Warrants shall terminate.
If, on or prior to the Expiration Date, the Company (or any other Person
controlling the Company) shall propose a voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Company, the Company shall give
written notice thereof to all Holders of Warrant Certificates in the manner
provided in Section 10 prior to the date on which such transaction is expected
to become effective or, if earlier, the record date for such transaction. Such
notice shall also specify the proposed date (if then determinable) as of which
the holders of record of the Common Shares shall be entitled to exchange their
shares for moneys, securities or other property deliverable upon such
dissolution, liquidation or winding up, as the case may be, the proposed date
(if then determinable) on which each Holder of Warrant Certificates shall be
entitled to receive the moneys, securities or other property which such Holder
would have been entitled to receive had such Holder been the holder of record of
the Warrant Shares into which the Warrants were exercisable
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immediately prior to such dissolution, liquidation or winding up (net of the
then applicable Warrant Price) and the date on which the rights to exercise the
Warrants shall terminate.
In case of any such voluntary or involuntary dissolution, liquidation or
winding up of the Company, the Company shall retain any money, securities or
other property which the Holders are entitled to receive under this Agreement.
After any Holder has surrendered a Warrant Certificate to the Company, the
Company shall make payment in the appropriate amount to such Person or Persons
as it may be directed in writing by the Holder surrendering such Warrant
Certificate. The Company shall not be required to pay interest on any money
deposited pursuant to the provisions of this Section 4.
5. ADJUSTMENTS
5.1 ADJUSTMENTS.
The number of Warrant Shares into which each Warrant is exercisable and
the Warrant Price shall be subject to adjustment from time to time after the
date hereof in accordance (and only in accordance) with the provisions of this
Section 5:
(a) STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS. In case at any
time or from time to time after the date hereof and before the Expiration Date
the Company shall:
(i) pay to all holders of outstanding Common Shares a dividend
payable in, or make any other distribution on any class of its capital
stock in, Common Shares (other than a dividend or distribution upon a
merger or consolidation or sale to which Section 5.1(h) applies);
(ii) subdivide its outstanding Common Shares into a larger number
of Common Shares (other than a subdivision upon a merger or consolidation
or sale to which Section 5.1(h) applies); or
(iii) combine its outstanding Common Shares into a smaller number
of Common Shares (other than a combination upon a merger or consolidation
or sale to which Section 5.1(h) applies);
then, (x) in the case of any such dividend or distribution, effective
immediately after the time for the determination of the holders of Common Shares
entitled to receive such dividend or distribution or (y) in the case of any
subdivision or combination, effective immediately after the time as of which
such subdivision or combination becomes effective, the number of Warrant Shares
into which each Warrant is exercisable shall be adjusted to that number of
Warrant Shares determined by (A) in the case of any such dividend or
distribution, multiplying the number of Warrant Shares into which each Warrant
is exercisable immediately prior to the time for such determination by a
fraction (not to be less than one), (1) the numerator of which shall be equal to
the sum of the number of Common
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Shares outstanding immediately prior to the time for such determination and the
total number of shares constituting such dividend or distribution and (2) the
denominator of which shall be equal to the number of Common Shares outstanding
immediately prior to the time for such determination, or (B) in the case of any
such combination, by proportionately reducing, or, in the case of any such
subdivision, by proportionately increasing, the number of Warrant Shares into
which each Warrant is exercisable immediately prior to the time as of which upon
which such subdivision or combination becomes effective.
(b) CERTAIN OTHER DIVIDENDS AND DISTRIBUTIONS. In case at any time
or from time to time after the date hereof and before the Expiration Date the
Company shall effect a Non-Stock Dividend (other than any dividend or
distribution of any warrants, options or rights referred to in Section 5.1(d)),
then, and in each such case, effective immediately after the time for the
determination of the holders of Common Shares entitled to receive such
distribution, the number of Warrant Shares into which each Warrant is
exercisable shall be adjusted to that number determined by multiplying the
number of Warrant Shares into which each Warrant is exercisable immediately
prior to such time of determination by a fraction, (i) the numerator of which
shall be the Current Market Price per Common Share on such date of determination
and (ii) the denominator of which shall be such Current Market Price per Common
Share minus the portion applicable to one Common Share of the fair market value
(as determined in good faith by an Independent Financial Expert) of such
securities or other assets so distributed pursuant to such Non-Stock Dividend.
(c) RECLASSIFICATIONS. A reclassification of the Common Shares
(other than any such reclassification in connection with a merger or
consolidation or sale to which Section 5.1(h) applies and other than a change in
par value, or from par value to no par value, or from no par value to par value)
into Common Shares and shares of any other class of stock shall be deemed a
distribution by the Company to the holders of its Common Shares of such shares
of such other class of stock for the purposes and within the meaning of Section
5.1(b) (and the effective time of such reclassification shall be deemed to be
"the time for the determination of the holders of Common Shares entitled to
receive such distribution" for the purposes and within the meaning of Section
5.1(b)) and, if the outstanding number of Common Shares shall be changed into a
larger or smaller number of Common Shares as a part of such reclassification,
such change shall be deemed a subdivision or combination, as the case may be, of
the outstanding Common Shares for the purposes and within the meaning of Section
5.1(a) (and the effective time of such reclassification shall be deemed to be
"the time as of which such subdivision or combination becomes effective" for the
purposes and within the meaning of Section 5.1(a)).
(d) DISTRIBUTION OF WARRANTS OR OTHER RIGHTS TO HOLDERS OF COMMON
SHARES In case at any time or from time to time after the date hereof and before
the Expiration Date the Company shall make a distribution to all holders of
outstanding Common Shares of any warrants, options or other rights to subscribe
for or purchase any Additional Common Shares or securities convertible into or
exchangeable for Additional Common Shares (other than a distribution of such
warrants, options or rights upon a merger or consolidation or sale to which
Section 5.1(h) applies), whether or not the rights to subscribe or purchase
thereunder are immediately exercisable, and the
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gross consideration per share (computed as the gross amount of cash or the fair
market value (as determined in good faith by the Company's Board of Directors)
of other assets received by the Company before deduction of any underwriting or
similar commissions, compensation, discounts or concessions paid or allowed by
the Company in connection with such issue or sale and before deduction of any
other expenses payable in connection therewith) for which Additional Common
Shares may thereafter be issuable pursuant to such warrants or other rights
shall be less than the Current Market Price per Common Share on the date fixed
for determination of the holders of Common Shares entitled to receive such
distribution, then, and for each such case, effective immediately after the
opening of business on the day after the date for determination, the number of
Warrant Shares into which each Warrant is exercisable shall be adjusted to that
number determined by multiplying the number of Warrant Shares into which each
Warrant is exercisable immediately prior to such time for determination by a
fraction (not less than one), (i) the numerator of which shall be the number of
Common Shares outstanding immediately prior to such time for determination plus
the maximum number of Additional Common Shares issuable pursuant to all such
warrants or other rights issued in the distribution which triggered the
adjustment and (ii) the denominator of which shall be the number of Common
Shares outstanding immediately prior to such time for determination plus the
number of Common Shares that the minimum consideration received and receivable
by the Company for the issuance of such maximum number of Additional Common
Shares pursuant to the terms of such warrants or other rights would purchase at
such Current Market Price.
(e) SUPERSEDING ADJUSTMENT OF NUMBER OF WARRANT SHARES INTO WHICH
EACH WARRANT IS EXERCISABLE. In case at any time after any adjustment of the
number of Warrant Shares into which each Warrant is exercisable shall have been
made pursuant to Section 5.1(d) on the basis of the distribution of warrants or
other rights or after any new adjustment of the number of Warrant Shares into
which each Warrant is exercisable shall have been made pursuant to this Section
5.1(e), such warrants or rights shall expire, and all or a portion of such
warrants or rights shall not have been exercised, then, and in each such case,
such previous adjustment in respect of such warrants or rights which have
expired without exercise shall be rescinded and annulled as to any then
outstanding Warrants, and the Additional Common Shares that were deemed for
purposes of the computations set forth in Section 5.1(d) to have been issued or
sold by virtue of such adjustment in respect of such warrants or rights shall no
longer be deemed to have been distributed.
(f) OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER THIS SECTION.
The following provisions shall be applicable to the making of adjustments of the
number of Warrant Shares into which each Warrant is exercisable and to the
Warrant Price under this Section 5.1:
(i) TREASURY STOCK. The sale or other disposition of any issued
Common Shares owned or held by or for the account of the Company shall be
deemed an issuance or sale of Additional Common Shares for purposes of
this Section 5 if the gross consideration to be received by the Company
per Common Share (before reduction for any underwriting discounts or
commission or brokerage commissions) is less than the Current Market
Price. The Company shall not pay any dividend on or make any distribution
on Common Shares held in the treasury of the Company. For the purposes of
this Section 5.1, the number of
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Common Shares at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of Common Shares.
(ii) WHEN ADJUSTMENTS ARE TO BE MADE. The adjustments required by
Sections 5.1(a), 5.1(b), 5.1(c), 5.1(d) and 5.1(e) shall be made whenever
and as often as any specified event requiring an adjustment shall occur,
except that no adjustment of the Warrant Shares into which each Warrant is
exercisable that would otherwise be required shall be made unless and
until such adjustment either by itself or with other adjustments not
previously made increases or decreases the Warrant Shares into which each
Warrant is exercisable immediately prior to the making of such adjustment
by at least 1%. Any adjustment representing a change of less than such
minimum amount (except as aforesaid) shall be carried forward and made as
soon as such adjustment, together with other adjustments required by
Sections 5.1(a), 5.1(b), 5.1(c), 5.1(d) and 5.1(e) and not previously
made, would result in such minimum adjustment.
(iii) FRACTIONAL INTERESTS. In computing adjustments under this
Section 5, fractional interests in Common Shares shall be taken into
account to the nearest one-thousandth of a share.
(iv) DEFERRAL OF ISSUANCE UPON EXERCISE. In any case in which
this Section 5 shall require that an adjustment to the Warrant Shares into
which each Warrant is exercisable be made effective pursuant to Section
5.1(a), 5.1(b) or 5.1(d) prior to the occurrence of a specified event and
any Warrant is exercised after the time at which the adjustment became
effective but prior to the occurrence of such specified event, the Company
may elect to defer until the occurrence of such specified event the
issuing to the Holder of the Warrant Certificate evidencing such Warrant
(or other Person entitled thereto) of, and may delay registering such
Holder or other Person as the recordholder of, the Warrant Shares over and
above the Warrant Shares issuable upon such exercise determined in
accordance with Section 3.5 on the basis of the Warrant Shares into which
each Warrant is exercisable prior to such adjustment determined in
accordance with Section 3.5; PROVIDED, however, that the Company shall
deliver to such Holder or other person a due xxxx or other appropriate
instrument evidencing the right of such Holder or other Person to receive,
and to become the record holder of, such Additional Common Shares, upon
the occurrence of the event requiring such adjustment.
(g) WARRANT PRICE ADJUSTMENT. Whenever the number of Warrant Shares
into which a Warrant is exercisable is adjusted as provided in this Section 5.1,
the Warrant Price payable upon exercise of the Warrant shall simultaneously be
adjusted by multiplying such Warrant Price immediately prior to such adjustment
by a fraction, the numerator of which shall be the number of Warrant Shares into
which such Warrant was exercisable immediately prior to such adjustment, and the
denominator of which shall be the number of Warrant Shares into which such
Warrant was exercisable immediately thereafter.
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(h) MERGER, CONSOLIDATION OR COMBINATION. In the event the Company
merges, consolidates or otherwise combines with or into any Person after the
date hereof and before the Expiration Date, then, as a condition of such merger,
consolidation or combination, lawful and adequate provisions shall be made
whereby Warrantholders shall, in addition to their other rights hereunder,
thereafter have the right to purchase and receive upon the basis and upon the
terms and conditions specified in this Agreement upon exercise of the Warrants
and in lieu of the Warrant Shares immediately theretofore purchasable and
receivable upon the exercise of the rights represented hereby, such shares of
stock, securities or assets as may be issued or payable with respect to or in
exchange for a number of outstanding Common Shares equal to the number of
Warrant Shares immediately theretofore purchasable and receivable upon the
exercise of the rights represented hereby, and in any such case appropriate
provision shall be made (including the execution by the Person formed by
consolidation, merger or combination of a supplemental Warrant Agreement) with
respect to the rights and interests of the Warrantholders to the end that the
provisions hereof (including, without limitation, provisions for adjustments of
the number of Warrant Shares) shall thereafter be applicable, as nearly as may
be practicable, in relation to any shares of stock, securities or assets
thereafter deliverable upon the exercise hereof. This Section 5.1(h) shall
similarly apply to successive consolidations, mergers or combinations.
(i) COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Before taking any
action that would cause an adjustment reducing the Warrant Price below the then
par value of any of the Warrant Shares into which the Warrants are exercisable,
the Company will take any corporate action that may be necessary in order that
the Company may validly and legally issue fully paid and non assessable Warrant
Shares at such adjusted Warrant Price.
(j) WARRANTS DEEMED EXERCISABLE. For purposes solely of this Section
5, the number of Warrant Shares which the holder of any Warrant would have been
entitled to receive had such Warrant been exercised in full at any time or into
which any Warrant was exercisable at any time shall be determined assuming such
Warrant was exercisable in full at such time, although such Warrant may not be
exercisable in full at such time pursuant to Section 3.2(a).
(k) LIMITATIONS ON CERTAIN NON-STOCK DIVIDENDS. The Company agrees
that, during the period from the date hereof through the Expiration Date, it
will not declare or pay any Non-Stock Dividend subject to Section 5.1(b) hereof
to the extent that the fair market value of the property or other assets to be
distributed in respect of one Common Share equals or exceeds the Current Market
Price per Common Share at the date of determination.
5.2 NOTICE OF ADJUSTMENT.
Whenever the number of Warrant Shares into which a Warrant is exercisable
is to be adjusted, or the Warrant Price is to be adjusted, in either case as
herein provided, the Company shall compute the adjustment in accordance with
Section 5.1, and shall, promptly after such adjustment becomes effective, cause
a notice of such adjustment or adjustments to be given to all Holders in
accordance with Section 10.1(b).
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5.3 STATEMENT ON WARRANT CERTIFICATES.
Irrespective of any adjustment in the number or kind of shares into which
the Warrants are exercisable, Warrant Certificates theretofore or thereafter
issued may continue to express the same price and number and kind of shares
initially issuable pursuant to this Agreement.
5.4 FRACTIONAL INTEREST.
The Company shall not issue fractional Warrant Shares on the exercise of
Warrants. If Warrant Certificates evidencing more than one Warrant shall be
presented for exercise at the same time by the same Holder, the number of full
Warrant Shares which shall be issuable upon such exercise thereof shall be
computed on the basis of the aggregate number of Warrants so to be exercised. If
any fraction of a Warrant Share would, except for the provisions of this Section
5.4, be issuable on the exercise of any Warrant (or specified portion thereof),
the Company shall, in lieu of issuing any fractional Warrant Shares, pay an
amount in cash calculated by it to be equal to the then Current Market Price per
Common Share on the date of such exercise multiplied by such fraction computed
to the nearest whole cent. The Holders, by their acceptance of the Warrant
Certificates, expressly waive their right to receive any fraction of a Warrant
Share or a stock certificate representing a fraction of a Warrant Share.
6. LOSS OR MUTILATION
Upon (i) receipt by the Company of evidence reasonably satisfactory to the
Company of the ownership of and the loss, theft, destruction or mutilation of
any Warrant Certificate and such reasonable and customary security or indemnity
as may be required by the Company to hold the Company harmless and (ii)
surrender, in the case of mutilation, of the mutilated Warrant Certificate to
the Company and cancellation thereof, then, in the absence of notice to the
Company that the Warrants evidenced thereby have been acquired by a bona fide
purchaser, the Company shall execute and deliver to the registered Holder of the
lost, stolen, destroyed or mutilated Warrant Certificate, in exchange therefor
or in lieu thereof, a new Warrant Certificate of the same tenor and for a like
aggregate number of Warrants. At the written request of such registered Holder,
the new Warrant Certificate so issued shall be retained by the Company as having
been surrendered for exercise, in lieu of delivery thereof to such Holder, and
shall be deemed for purposes of Section 3.2 to have been surrendered for
exercise on the date the conditions specified in clauses (i) and (ii) of the
immediately preceding sentence were first satisfied.
Upon the issuance of any new Warrant Certificate under this Section 6, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto.
The provisions of this Section 6 are exclusive and shall preclude (to the
extent lawful) all other rights or remedies with respect to the replacement of
mutilated, lost, stolen, or destroyed Warrant Certificates.
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7. RESERVATION AND AUTHORIZATION OF WARRANT SHARES
The Company shall at all times reserve and keep available, free from
preemptive rights, solely for issue upon the exercise of Warrants as herein
provided, such number of its authorized but unissued Warrant Shares deliverable
upon the exercise of Warrants as will be sufficient to permit the exercise in
full of all outstanding Warrants. The Company covenants that all Warrant Shares
will, at all times that Warrants are exercisable, be duly approved for listing
subject to official notice of issuance on each securities exchange, if any, or
the Nasdaq National Market, if applicable, on which the Common Shares are then
listed or traded. The Company covenants that (i) all Warrant Shares that may be
issued upon due exercise of Warrants shall upon issuance be duly and validly
authorized, issued and fully paid and nonassessable and free of preemptive or
similar rights and (ii) the stock certificates issued to evidence any such
Warrant Shares will comply with Section 158 of the Delaware General Corporation
Law (or its successor) and any other applicable law.
The Company hereby authorizes and directs its current and future transfer
agents for the Common Shares at all times to reserve stock certificates for such
number of authorized shares as shall be requisite for such purpose. The Company
will supply such transfer agents with duly executed stock certificates for such
purposes.
8. WARRANT TRANSFER BOOKS
Warrant Certificates may be surrendered for registration of transfer or
exchange, and Warrant Certificates may be surrendered for exercise of Warrants
evidenced thereby, at the Corporate Office. The Company will give prompt written
notice to all Holders of Warrant Certificates of any change in the location of
the Corporate Office.
The Company shall cause to be kept at the Corporate Office a warrant
register (the "Warrant Register") in which, subject to such reasonable
regulations as the Company may prescribe and such regulations as may be
prescribed by applicable law, the Company shall provide for the registration of
Warrant Certificates and of transfers or exchanges of Warrant Certificates as
herein provided.
Subject to the provisions of Sections 2.4, 3.2 and 3.3, upon surrender for
registration of transfer of any Warrant Certificate at the Corporate Office, the
Company shall execute and deliver, in the name of the designated transferee or
transferees, one or more new Warrant Certificates evidencing a like aggregate
number of Warrants.
Subject to Section 2.4, (i) at the option of the Holder, Warrant
Certificates may be exchanged at the Corporate Office upon payment of the
charges herein provided for other Warrant Certificates evidencing a like
aggregate number of Warrants and (ii) whenever any Warrant Certificates are so
surrendered for exchange, the Company shall execute and deliver the Warrant
Certificates of the same tenor and evidencing the same number of Warrants as
evidenced by the Warrant Certificates surrendered by the Holder making the
exchange.
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All Warrant Certificates issued upon any registration of transfer or
exchange of Warrant Certificates shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificates surrendered for such registration of
transfer or exchange.
Subject to Section 2.4, every Warrant Certificate surrendered for
registration of transfer or exchange shall (if so required by the Company) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company, duly executed by the Holder thereof or his attorney
duly authorized in writing.
9. WARRANT HOLDERS
9.1 VOTING OR DIVIDEND RIGHTS.
Prior to the exercise of the Warrants, except as may be specifically
provided for herein, (i) no Holder of a Warrant Certificate, as such, shall be
entitled to any of the rights of a holder of Common Shares, including, without
limitation, the right to vote at or to receive any notice of any meetings of
stockholders of the Company; (ii) the consent of any Holder shall not be
required with respect to any action or proceeding of the Company; (iii) except
as provided in Section 4, no Holder, by reason of the ownership or possession of
a Warrant or the Warrant Certificate representing the same, shall have any right
to receive any stock dividends, allotments or rights or other distributions
paid, allotted or distributed or distributable to the stockholders of the
Company prior to, or for which the relevant record date preceded, the date of
the exercise of such Warrant; and (iv) no Holder shall have any right not
expressly conferred by this Agreement or Warrant Certificate held by such
Holder.
9.2 RIGHTS OF ACTION.
All rights of action against the Company in respect of this Agreement are
vested in the Holders of the Warrant Certificates, and any Holder of any Warrant
Certificate, without the consent of the Holder of any other Warrant Certificate,
may, on such Holder's own behalf and for such Holder's own benefit, enforce and
may institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, such Holder's right to
exercise, exchange or tender for purchase such Holder's Warrants in the manner
provided in this Agreement.
9.3 TREATMENT OF HOLDERS OF WARRANT CERTIFICATES.
Every Holder of a Warrant Certificate, by accepting the same, consents and
agrees with the Company and with every subsequent holder of such Warrant
Certificate that, prior to due presentment of such Warrant Certificate for
registration of transfer, the Company and any agent of the Company may treat the
Person in whose name the Warrant Certificate is registered as the owner thereof
for all purposes and as the Person entitled to exercise the rights granted under
the Warrants represented by such Warrant Certificate, and neither the Company
nor any agent of the Company shall be affected by any notice to the contrary.
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9.4 COMMUNICATIONS TO HOLDERS.
(a) If any Holder of a Warrant Certificate applies in writing to the
Company and such application states that the applicant desires to communicate
with other Holders with respect to its rights under this Agreement or under the
Warrants, then the Company shall, within five (5) Business Days after the
receipt of such application, and upon payment to the Company by such applicant
of the reasonable expenses of preparing such list, provide to such applicant a
list of the names and addresses of all Holders of Warrant Certificates as of the
most recent practicable date.
(b) Every Holder of Warrant Certificates, by receiving and holding
the same, agrees with the Company that neither the Company nor any agent of the
Company shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with
Section 9.4(a).
10. NOTICES
10.1 NOTICES GENERALLY.
(a) Any request, notice, direction, authorization, consent, waiver,
demand or other communication required or permitted by this Agreement to be made
upon, given or furnished to or filed with the Company by the other party hereto
or by any Holder shall be sufficient for every purpose hereunder if in writing
(including telecopy communication) and telecopied or delivered by hand
(including by courier service) as follows:
If to the Company, to it at:
U. S. Concrete, Inc.
0000 Xxxx Xxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
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(or such other address as shall have been set forth in a notice
delivered in accordance with this Section 10.1(a)).
_______________________
_______________________
_______________________
If to a Holder, to it at the address for that the address for that
Holder reflected in the Warrant Register, which for each of the
initial Holders, is initially as follows:
Xxxxx & Xxxxxxxxxxxx, Inc.
Attention: Xxxxx Xxxxxxxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Xxxxxxx Xxxxxx Xxxxx
Attention: Xxxxxxx Xxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
All such communications shall, when so telecopied or delivered by hand, be
effective when telecopied with confirmation of receipt or received by the
addressee, respectively.
Any Person that telecopies any communication hereunder to any Person
shall, on the same date as such telecopy is transmitted, also send, by first
class mail, postage prepaid and addressed to such Person as specified above, an
original copy of the communication so transmitted.
(b) Where this Agreement provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder as it appears
in the Warrant Register, not later than the latest date (if any), and not
earlier than the earliest date (if any), prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Agreement provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made by a method reasonably approved in good faith
by the Company as one which would be most reliable under the circumstances for
successfully delivering the notice to the addressees shall constitute a
sufficient notification for every purpose hereunder.
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10.2 REQUIRED NOTICES TO HOLDERS.
In case the Company shall propose (i) to pay any dividend payable in stock
of any class to the holders of its Common Shares, to pay a dividend or
distribution payable otherwise than in cash, or a cash dividend or distribution
payable otherwise than out of current or retained earnings or other
extraordinary cash dividend, or to make any other distribution to the holders of
its Common Shares for which an adjustment is required to be made pursuant to
Section 5, (ii) to distribute to all holders of outstanding Common Shares rights
to subscribe for or to purchase any Additional Common Shares or shares of stock
of any class or any other securities, rights or options, (iii) to effect any
reclassification of Common Shares, (iv) to effect any transaction described in
Section 5.1(h) or (v) to effect the liquidation, dissolution or winding up of
the Company or a sale of all or substantially all of its assets, then, and in
each such case, the Company shall give to each Holder, in accordance with
Section 10.1(b), a notice of such proposed action or event. Such notice shall
specify (x) the date on which a record is to be taken for the purposes of such
dividend or distribution; and (y) the date on which the Company expects such
reclassification, transaction, event, liquidation, dissolution or winding up to
become effective and the date as of which the Company expects that holders of
Common Shares of record will be entitled to exchange their Common Shares for
securities, cash or other property deliverable upon such reclassification,
transaction, event, liquidation, dissolution or winding up. Such notice shall be
given, in the case of any action covered by clause (i) or (ii) above, at least
fifteen (15) days prior to the record date for determining holders of the Common
Shares for purposes of such action or, in the case of any action covered by
clauses (iii) through (v), at least twenty (20) days prior to the applicable
effective or expiration date specified above or, in any such case, prior to such
earlier time as notice thereof shall be required to be given pursuant to Rule
10b-17 under the Exchange Act, if applicable.
If at any time the Company shall cancel any of the proposed transactions
for which notice has been given under this Section 10.2 prior to the
consummation thereof, the Company shall give each Holder prompt notice of such
cancellation in accordance with Section 10.1(b) hereof.
11. APPLICABLE LAW
THIS AGREEMENT, EACH WARRANT CERTIFICATE ISSUED HEREUNDER, EACH WARRANT
EVIDENCED THEREBY AND ALL RIGHTS ARISING HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THE APPLICATION OF THE
LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
12. PERSONS BENEFITING
This Agreement shall be binding upon and inure to the benefit of the
Company, S&S and SMM, and their respective successors and assigns and the
Holders from time to time. Nothing in this Agreement is intended or shall be
construed to confer upon any Person, other than the Company,
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S&S and SMM and the Holders, any right, remedy or claim under or by reason of
this Agreement or any part hereof. Each Holder, by acceptance of a Warrant
Certificate, agrees to all of the terms and provisions of this Agreement
applicable thereto.
13. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument.
14. AMENDMENTS
This Agreement may be amended by the Company only with the consent of the
Holders of a majority of the then outstanding Warrants. Notwithstanding the
foregoing, the consent of each Holder of a Warrant affected shall be required
for any amendment pursuant to which the Warrant Price would be increased or the
number of Warrant Shares purchasable upon exercise of Warrants would be
decreased (other than pursuant to adjustments provided for herein).
Upon execution and delivery of any amendment pursuant to this Section 14,
such amendment shall be considered a part of this Agreement for all purposes and
every Holder of a Warrant Certificate theretofore or thereafter delivered
hereunder shall be bound thereby.
Promptly after the execution by the Company of any such amendment, the
Company shall give notice to the Holders, setting forth in general terms the
substance of such amendment, in accordance with the provisions of Section
10.1(b). Any failure of the Company to mail such notice or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amendment.
15. INSPECTION
The Company may require each Holder to submit his Warrant Certificate for
inspection by the Company.
16. SUCCESSOR TO THE COMPANY
So long as Warrants remain outstanding, the Company will not enter into
any Non-Surviving Combination unless the acquirer (or its parent company under
any triangular acquisition) shall expressly assume by a supplemental agreement,
executed and delivered to the Company, in form reasonably satisfactory to the
Company, the due and punctual performance of every covenant of this Agreement on
the part of the Company to be performed and observed and shall have provided for
exercise rights in accordance with Section 5.1(h). Upon the consummation of such
Non-Surviving Combination, the acquirer (or its parent company under any
triangular acquisition) shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this
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Agreement with the same effect as if such acquirer (or its parent company under
any triangular acquisition) had been named as the Company herein.
17. ENTIRE AGREEMENT
This Agreement sets forth the entire agreement of the parties hereto as to
the subject matter hereof and supersedes all previous agreements among all or
some of the parties hereto with respect thereto, whether written, oral or
otherwise.
18. HEADINGS
The descriptive headings of the several Sections of this Agreement are
inserted for convenience and shall not control or affect the meaning or
construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
U. S. CONCRETE, INC.
By: /s/ XXXXXX X. XXXXXXXXX
Xxxxxx X. Xxxxxxxxx
Chief Executive Officer
XXXXX & XXXXXXXXXXXX, INC.
By: _________________________________
Print Name: _____________________
Title: __________________________
XXXXXXX XXXXXX XXXXX INC.
By: _________________________________
Print Name: _____________________
Title: __________________________
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EXHIBIT A
FORM OF FACE OF WARRANT CERTIFICATE
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS IS AVAILABLE WITH RESPECT
TO THAT OFFER AND SHARE.
THE WARRANT REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES
ISSUABLE UPON EXERCISE THEREOF ARE SUBJECT TO THE CONDITIONS SPECIFIED IN
THE WARRANT AGREEMENT, DATED MAY , 1999, AMONG THE COMPANY, XXXXX &
XXXXXXXXXXXX, INC. AND XXXXXXX XXXXXX XXXXX INC. THE TRANSFER OR EXCHANGE
OF THE WARRANT REPRESENTED BY THIS CERTIFICATE AND OTHER SECURITIES
ISSUABLE UPON EXERCISE THEREOF IS RESTRICTED IN ACCORDANCE WITH THE
WARRANT AGREEMENT REFERRED TO HEREIN. A COPY OF THE WARRANT AGREEMENT IS
ON FILE AT THE OFFICES OF U.S. CONCRETE, INC. THE HOLDER OF THIS
CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY THE
PROVISIONS OF THE WARRANT AGREEMENT.
U. S. CONCRETE, INC.
WARRANT CERTIFICATE
EVIDENCING
WARRANTS TO PURCHASE COMMON SHARES
EXERCISABLE ON OR BEFORE
5:00 P.M. HOUSTON,
TEXAS TIME,
ON
______________, 2002
No. ___________________ ________________ Warrants
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THIS CERTIFIES THAT, for value received, _______________________
___________________________, or registered assigns, is the registered owner of
______________________ Warrants to Purchase Common Shares of U. S. Concrete,
Inc., a Delaware corporation (the "Company," which term includes any successor
thereto under the Warrant Agreement), and is entitled, subject to and upon
compliance with the provisions hereof and of the Warrant Agreement, at such
Holder's option, at any time when the Warrants evidenced hereby are exercisable,
to purchase from the Company one Warrant Share for each Warrant evidenced
hereby, at the purchase price of $_______ per share (as adjusted from time to
time, the "Warrant Price"), payable in full at the time of purchase, the number
and nature of Warrant Shares into which and the Warrant Price at which each
Warrant shall be exercisable, each being subject to adjustment as provided in
Section 5 of the Warrant Agreement.
The Holder of this Warrant Certificate may exercise all or any whole
number of the Warrants evidenced hereby, on any Business Day on and after the
first anniversary of the Issue Date until 5:00 p.m., Houston, Texas time, on ,
2002 (subject to earlier expiration pursuant to Section 4 of the Warrant
Agreement, the "Expiration Date") for the Warrant Shares purchasable hereunder.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this certificate to be duly
executed under its corporate seal.
U. S. CONCRETE, INC.
[SEAL] By: /s/ XXXXXX X. XXXXXXXXX
Xxxxxx X. Xxxxxxxxx
Chief Executive Officer
ATTEST:
______________________________
Dated: May _____, 1999
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[FORM OF REVERSE OF WARRANT CERTIFICATE]
U. S. CONCRETE, INC.
WARRANT CERTIFICATE
EVIDENCING
WARRANTS TO PURCHASE COMMON SHARES
1. GENERAL.
Each Warrant evidenced hereby is one of a duly authorized issue of
Warrants of the Company designated as its Warrants to Purchase Common Shares
("Warrants"), limited in aggregate number to 200,000 Warrants (subject to
adjustment pursuant to Section 5 of the Warrant Agreement) issued under and in
accordance with the Warrant Agreement, dated as of ________________, 1999 (the
"Warrant Agreement"), between the Company, Xxxxx & Xxxxxxxxxxxx, Inc. and
Xxxxxxx Xxxxxx Xxxxx Inc., to which Warrant Agreement and all amendments thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, Xxxxx &
Xxxxxxxxxxxx, Inc. and Xxxxxxx Xxxxxx Xxxxx Inc., the Holders of this Warrant
Certificate and the owners of the Warrants evidenced hereby. A copy of the
Warrant Agreement is available during normal business hours at the Corporate
Office for inspection by the Holder hereof.
Subject to the provisions of Sections 2.4, 3.2 and 3.3 of the Warrant
Agreement, in the event of the exercise of less than all of the Warrants
evidenced hereby, a new Warrant Certificate in the same form and for the number
of Warrants which are not exercised shall be issued by the Company in the name
or upon the written order of the Holder of this Warrant Certificate upon the
cancellation hereof.
All Warrant Shares issuable by the Company upon the exercise of Warrants
shall, upon such issuance, be duly authorized, validly issued, fully paid and
nonassessable and free of preemptive or similar rights. The Company will pay all
documentary stamp taxes attributable to the initial issuance of Warrants and the
Warrant Shares issuable upon exercise of the Warrants. The Company shall not be
required to pay any tax or other charge imposed in respect of (i) any transfer
or exchange of any Warrant Certificate or any certificates for Warrant Shares or
(ii) payment of cash to any Person other than the Holder of the Warrant
Certificate surrendered upon the exercise of a Warrant, and in case of such
transfer, exchange or payment, the Company shall not be required to issue or
deliver any certificate or pay any cash until (a) such tax or charge has been
paid or an amount sufficient for the payment thereof has been delivered to the
Company or (b) it has been established to the Company's satisfaction that any
such tax or other charge that is or may become due has been paid.
The Warrant Certificates are issuable only in registered form in
denominations of whole numbers of Warrants. Upon surrender at the Corporate
Office and payment of the charges specified herein and in the Warrant Agreement,
this Warrant Certificate may be exchanged for Warrant Certificates in other
authorized denominations or the transfer hereof may be registered in whole or
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in part in authorized denominations to one or more designated transferees,
subject to the restrictions on transfer set forth in the Warrant Agreement;
provided, however, that such other Warrant Certificates issued upon exchange or
registration of transfer shall evidence the same aggregate number of Warrants as
this Warrant Certificate. The Company shall cause to be kept at the Corporate
Office the Warrant Register in which, subject to such reasonable regulations as
the Company may prescribe and such regulations as may be prescribed by
applicable law, the Company shall provide for the registration of Warrant
Certificates and of transfers or exchanges of Warrant Certificates as provided
in the Warrant Agreement.
2. EXPIRATION.
Except as provided in Section 4 of the Warrant Agreement and Section 3 of
this Warrant Certificate, all outstanding Warrants shall expire and all rights
of the Holders of Warrant Certificates evidencing such Warrants shall terminate
and cease to exist, as of 5:00 p.m., Houston, Texas time, on the Expiration
Date. "Expiration Date" shall mean ______________, 2002, or such earlier date as
determined in accordance with Section 4 of the Warrant Agreement and Section 3
of this Warrant Certificate.
3. LIQUIDATION OF THE COMPANY.
If, on or prior to the Expiration Date, the Company shall effect or
otherwise be subject to a voluntary or involuntary dissolution, liquidation or
winding up of the affairs of the Company, each Warrantholder shall receive the
securities, money or other property which such Warrantholder would have been
entitled to receive had such Warrantholder been the holder of record of the
Warrant Shares into which the Warrants were exercisable immediately prior to
such dissolution, liquidation or winding up (net of the then applicable Warrant
Price), and the rights to exercise such Warrants shall terminate.
4. ANTI-DILUTION ADJUSTMENTS.
The number and nature of Warrant Shares issuable upon exercise of a
Warrant and the Warrant Price shall be adjusted on occurrence of certain events
as provided in the Warrant Agreement, including, without limitation, the payment
of certain dividends on, or the making of certain distributions in respect of,
the Common Shares, including the distribution of rights to purchase Common
Shares (or securities convertible into or exchangeable for Common Shares) at a
price below the Current Market Price. An adjustment shall also be made in the
event of a combination, subdivision or reclassification of the Common Shares.
Adjustments will be made whenever and as often as any specified event requires
an adjustment to occur in accordance with the Warrant Agreement.
In such event, the Company will, at the request of the holder, issue a new
Warrant Certificate evidencing the adjustment in the Warrant Price and the
number and/or nature of securities or property issuable upon the exercise of the
Warrants; provided however, that the failure of the
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Company to issue such new Warrant Certificates shall not in any way change,
alter, or otherwise impair, the rights of the holder as set forth in the Warrant
Agreement.
5. PROCEDURE FOR EXERCISING WARRANT.
Subject to the provisions hereof and of the Warrant Agreement, the Holder
of this Warrant Certificate may exercise all or any whole number of the Warrants
evidenced hereby by either of the following methods:
(A) The Holder may deliver to the Corporate Office (i) a written
notice of such Holder's election to exercise all or a portion of the
Warrants evidenced hereby, duly executed by such Holder in the form set
forth below, which notice shall specify the number of Warrant Shares to be
purchased, (ii) this Warrant Certificate and (iii) a sum equal to the
aggregate Warrant Price for the Warrant Shares into which the Warrants
represented by this Warrant Certificate are being exercised, which sum
shall be paid in any combination elected by such Holder of (x) a certified
or official bank check payable to the order of the Company and delivered
to the Company at the Corporate Office, or (y) wire transfers in
immediately available funds to the account of the Company at such banking
institution as the Company shall have given notice to the Holders in
accordance with the Warrant Agreement; or
(B) The Holder may also exercise all or any of the Warrants in a
"cashless" or "net-issue" exercise by delivering to the Company at the
Corporate Office (i) a written notice of such Holder's election to
exercise all or a portion of the Warrants evidenced hereby, duly executed
by such Holder in the form set forth below, which notice shall specify the
number of Warrant Shares to be delivered to such Holder and the number of
Warrant Shares with respect to which Warrants represented by this Warrant
Certificate are being surrendered in payment of the aggregate Warrant
Price for the Warrant Shares to be delivered to the Holder, and (ii) this
Warrant Certificate. For purposes of this subparagraph (B), each Warrant
Share as to which such Warrants are surrendered in payment of the
aggregate Warrant Price will be attributed a value equal to (x) the Market
Price per share of Common Shares MINUS (y) the then-current Warrant Price.
Solely for the purpose of this paragraph, the Market Price shall be
calculated as the average of the Market Prices for each of the five
trading days preceding such date.
6. REGISTERED HOLDER.
Prior to and including due presentment of this Warrant Certificate for
registration of transfer, the Company and any agent of the Company may treat the
Person in whose name this Warrant Certificate is registered as the owner hereof
for all purposes, and neither the Company nor any agent of the Company shall be
affected by notice to the contrary.
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7. AMENDMENT.
The Warrant Agreement permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of Warrant Certificates
under the Warrant Agreement at any time by the Company with the consent of the
Holders of a majority of the then outstanding Warrants.
8. STATUS AS WARRANTHOLDER.
Prior to the exercise of the Warrants, except as may be specifically
provided for in the Warrant Agreement, (i) no Holder of a Warrant Certificate,
as such, shall be entitled to any of the rights of a holder of Common Shares,
including, without limitation, the right to vote at, or to receive any notice
of, any meetings of stockholders of the Company; (ii) the consent of any Holder
shall not be required with respect to any action or proceeding of the Company;
(iii) except as provided in the Warrant Agreement with respect to the
dissolution, liquidation or winding up of the Company, no Holder, by reason of
the ownership or possession of a Warrant or the Warrant Certificate representing
the same, shall have any right to receive any stock dividends, allotments or
rights or other distributions (except as specifically provided in the Warrant
Agreement), paid, allotted or distributed or distributable to the stockholders
of the Company prior to or for which the relevant record date preceded the date
of the exercise of such Warrant; and (iv) no Holder shall have any right not
expressly conferred by the Warrant Agreement or Warrant Certificate held by such
Holder.
9. GOVERNING LAW.
THIS WARRANT CERTIFICATE, EACH WARRANT EVIDENCED HEREBY AND THE WARRANT
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS TO
THE EXTENT THAT APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
10. DEFINITIONS.
All terms used in this Warrant Certificate which are defined in the
Warrant Agreement shall have the meanings assigned to them in the Warrant
Agreement.
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FORM OF EXERCISE
In accordance with and subject to the terms and conditions hereof and of
the Warrant Agreement, the undersigned registered Holder of this Warrant
Certificate hereby irrevocably elects to exercise ____________________ Warrants
evidenced by this Warrant Certificate and represents that such Holder has
tendered the Warrant Price for each of the Warrants evidenced hereby being
exercised in the aggregate amount of $_________ in the indicated combination of:
(i) cash ($____________);
(ii) certified bank check in funds payable to the order of the
Company
($____________);
(iii) official bank check in funds payable to the order of the
Company
($____________);
(iv) or wire transfer in immediately available funds to the
account designated by the Company for such purpose ($________); or
(v) "cashless" or "net-issue" exercise with respect to ________
Warrants pursuant to Section 3.2(c)(ii) of the Warrant Agreement and
Section 5(B) of this Warrant
Certificate.
The undersigned requests that the Warrant Shares issuable upon exercise be
in fully registered form in such denominations and registered in such names and
delivered, together with any other property receivable upon exercise, in such
manner as is specified in the instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
A-7
Dated: __________________________ Name: ________________________________
(Please Print)
_________________________________
(Insert Social Security or Other
Identifying Number of Holder) Address: _____________________________
______________________________________
______________________________________
Signature
Signature Guaranteed:
_____________________________
Instructions (i) as to denominations and names of Warrant Shares issuable
upon exercise and as to delivery of such securities and any other property
issuable upon exercise and (ii) if applicable, as to Warrant Certificates
evidencing unexercised Warrants:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
A-8
ASSIGNMENT
(Form of Assignment To Be Executed If Holder Desires To Transfer
Warrant Certificate)
FOR VALUE RECEIVED _________________________ hereby sells, assigns and
transfers
unto
Please insert social security
or other identifying number
_______________________________________
___________________________________________________
(Please print name and address including zip code)
___________________________________________________
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _________________ Attorney, to transfer said
Warrant Certificate on the books of the within-named Company with full power of
substitution in the premises.
Dated:
_____________________________________
Signature
Signature Guaranteed:
___________________________
A-9
